If so, do you still own property together as joint tenants? If you do not know, you likely do. Even if you change your Will, your joint property still goes to your spouse by right of survivorship (an automatic rule). People focus on the separation agreement or redoing their Will (which are both important) but forget about title to the property (or properties) while the separation is being negotiated.
Even before you start negotiating, you should be transferring your property from you as a joint tenant to you as a tenant-in-common. Either spouse can do this without the other spouse’s consent as you are not transferring their share, only your own. You are simply giving a clear indication that you want your 50% of the property to be dealt with according to your Will, rather than the automatic right of survivorship explained above.
I saw this again last week, where a person died having separated eight years before. The property was still in both names as joint tenants, so his share technically went to his spouse by right of survivorship. In their case, the separation was amicable, and therefore no separation agreement was ever signed.
Unfortunately, this type of situation leads to further litigation, often pitting a spouse against the other’s children or other beneficiaries under the Will.
If you have any questions about organizing your post-separation life in regard to your property or your estate planning, please send me an email at marc@ottawa.law to book a free 15-minute call to discuss.
