When buying a home in Scotland with another person, one of the most important legal decisions you’ll make concerns how the property title is worded. In particular, you’ll need to decide whether to include a survivorship destination. This simple clause determines what happens to the property if one of the owners dies, and can have a significant impact on future ownership and estate planning.
At Fords Daly Legal, we believe it’s vital that clients understand how survivorship destinations work, what advantages they offer, and when they may not be suitable.
Understanding property ownership and title
Your property title is the legal document that confirms ownership of your home and is recorded in the Land Register of Scotland. When more than one person buys a property together, the title will state how ownership is divided. This may include a survivorship destination, or instead specify that the property is owned in equal or unequal shares (known as pro indiviso shares).
A survivorship destination is not a mere formality. It directly affects what happens to the property when one of the owners dies, regardless of what any Will might say.
What is a survivorship destination?
A survivorship destination is a clause written into the title deeds which provides that, on the death of one owner, their share of the property automatically transfers to the survivor. It operates by law and overrides any contrary direction in a Will.
For example, if a couple owns a home with a survivorship destination and one of them passes away, their share immediately vests in the surviving owner. The transfer happens automatically, without the need for executry or a court order.
Why include a survivorship destination?
The key advantage of a survivorship destination is simplicity. It ensures that the surviving owner becomes a sole proprietor immediately after the other’s death, without delay or legal formalities. For married couples and civil partners, this often provides welcome reassurance that their home will remain secure in the survivor’s name.
It can also offer protection for unmarried couples who may not otherwise benefit automatically under succession law.
Possible drawbacks
While survivorship destinations can make things straightforward, they also have potential downsides. The main disadvantages include:
- Limited flexibility: You cannot freely choose who inherits your share of the property through your Will. The survivorship clause overrides it.
- Issues following separation: If the relationship breaks down, the survivorship destination still applies until both parties agree to remove it. Without doing so, one person’s death could leave the other as the sole owner, contrary to their wishes.
- Tax and estate planning complications: Survivorship clauses can restrict options for inheritance tax planning and may not suit everyone’s long-term financial goals.
Can the clause be removed later?
Yes. A survivorship destination can be removed, but only if both owners agree. This is done by signing and registering a formal document known as a Deed of Evacuation in the Land Register of Scotland. Once registered, each owner can then decide who should inherit their share through their Will.
The default position
When buying property together, many couples automatically assume a survivorship destination will be included, and in most cases, that is the default. However, you can instruct your solicitor to omit it if you would prefer your share to pass according to your Will or to someone else. It is essential to discuss this with your solicitor before the title is finalised.
Unequal contributions to the purchase
Sometimes one person contributes more to the purchase than the other, perhaps by providing a larger deposit. In such cases, the property can be held in unequal shares. A written agreement, such as a Deposit Agreement, may be prepared to confirm how ownership is divided and to clearly record the parties’ intentions.
Thinking about the bigger picture
A property purchase is often a good opportunity to review your overall estate planning. Whether you include a survivorship destination or not, it’s sensible to have a valid and up-to-date Will to cover the rest of your estate. Keeping your Will and property arrangements aligned ensures that your wishes are respected and that your affairs are handled efficiently in the event of death or incapacity.
How Fords Daly Legal can help
Decisions about property ownership and survivorship destinations can have long-term consequences for you and your loved ones. Our conveyancing and private client teams work together to ensure your title deeds, Will and estate plan are consistent with your wishes, both now and in the future.
If you’re buying a property or would like to review your existing title, get in touch with Fords Daly Legal today. We’ll help you understand your options and ensure your arrangements strike the right balance of security and flexibility for your circumstances.
