Survivorship Destinations and Separation/Divorce

What is a Survivorship Destination?

A Survivorship Destination is something found in legal documents that states that on death, an asset which is jointly owned (more technically owned ‘in common’) will pass to the survivor. The most common situation is a house owned by husband and wife. The Title might state that the house is owned by the husband and wife and the survivor of the husband and wife. This means that on death, the ownership of the house passes entirely and automatically to the survivor.

Consequences of a Survivorship Destination

Survivorship Destinations can cause unintended consequences on death, which can be seen often particularly in separation and divorce cases. Couples are often under the impression that when their marriage has broken down, and they make another Will, this will mean that the surviving spouse will not inherit any of their Estate including their half share in the jointly owned family home. This is not true when it comes to Survivorship Destinations, as it is no longer possible to evacuate a Survivorship Destination in a Will. Such a term would be ineffective, and the property would still transfer to the survivor on death. . Unless both parties agree in the separation process that the clause should not apply and “evacuate” the condition, it cannot be contracted out of by either party unilaterally. The separation process may take a while to conclude. This could lead to one-half share of the property of one party automatically passing to the other party on death, even if they were no longer together, and irrespective of the terms of their Wills.

Succession (Scotland) Act 2016

The new Rules for a Survivorship Destination under the new Succession (Scotland) Act 2016, which came into force on 04 March 2016, provide that such a Survivorship Destination of property in favour of a former spouse or former civil partner is now revoked by divorce. In most divorce cases this may not be until a year or two down the road leaving parties exposed in the meantime in the event of the death of either of them.

At Drummond Miller we always encourage divorce clients to review their Wills and can advise you with regards to the legal consequences of a survivorship destination.

The Drummond Miller family team is extremely experienced in dealing with all aspects of family law, including divorce and separation. We also have a very experienced private client team, who can assist with Wills, Powers of Attorney and Guardianships. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Glasgow, Dalkeith, Musselburgh and Bathgate.