When reviewing your asset protection and estate planning matters, if you own your home with your spouse, you should consider whether your current ownership structure best suits your needs.
Many couples own their property as joint tenants which means that on the death of the first of you, the property automatically passes to the survivor by the law of survivorship, meaning the surviving partner will take the entire property in their own name.
An alternative form of legal ownership where two (or more) people own property together is tenants in common, where the property is owned in distinct shares, most commonly as tenants in common in equal shares. The rule of survivorship does not apply here, and you determine what happens to your share of the property on your death in your Will.
Often with tenants in common you will leave a life interest in your share of the property to your spouse or partner in your Will. The Executor(s) of your Will will be instructed to allow your spouse or partner to live in the property for the remainder of their lifetime (or a shorter period in certain circumstances), with certain conditions around looking after the property and covering all the outgoings. Upon your spouse’s death, your estate’s half share of the property is distributed to the residual beneficiaries stated in your Will. This can be advantageous if the surviving spouse needs to make an application for a Residential Care Subsidy as they will only include the value of their share of the property as an asset, and your share remains safeguarded for the benefit of your intended beneficiaries.
