Joint Tenancy or Tenancy in Common: Is Your Former Spouse Entitled to Property You Own After You Die?

A former spouse may be entitled to your property after you die if their name remains on title. Of course, the best approach would be to remove their name from title. Then a former spouse may potentially would not receive anything. However, if their name remains on title, the portion of the property they are entitled to may depend on whether the property is held as a joint tenancy, or a tenancy in common.

Difference Between a Joint Tenancy and Tenancy in Common

The most significant difference between joint tenancy and tenancy in common is the concept of the “right of survivorship.” If property is owned as a joint tenancy, under the right of survivorship, when one joint owner dies, their interest in the property is passed to the surviving co-owner. In comparison, under a tenancy in common, when one owner dies, their interest is passed to their estate.

This means that if property owned by spouses is held as a joint tenancy, the surviving spouse is entitled to the entire property upon the death of the other joint owner. Whereas, if the property is held as a tenancy in common, then the surviving spouse keeps their interest in their portion of the estate. Further, the deceased spouse’s interest in the property goes to their estate, which would then be distributed as in accordance with their Will.

Under statutory law, when a married couple purchases property together, the presumption is that they purchase that property as joint tenants. Where both names remain on title years after a separation or divorce, to limit the quantum a former spouse is entitled to, the Court must determine that that joint tenancy has been severed.

How do the Courts Determine Whether a Joint Tenancy Has Been Severed?

The case Flock Estate v. Flock provides guidance as to how the Court will determine whether property is owned as a joint tenancy or tenancy in common. In this case, Ms. and Mr. Flock purchased a house together a joint tenants when they were married. Shortly after the purchase of this house, they separated. Roughly two decades later Ms. Flock died, and both names remained on title.

Mr. Flock took the position that he was entitled to the entirety of that home under the right of survivorship. However, he had moved out of the home after their separation, and not paid for the mortgage or the upkeep of the house since. Ms. Flocks husband Mr. McKen took the position that Mr. Flock was only entitled to a portion of the house, because the joint tenancy had severed. He argued that Mr. Flock and Ms. Flock owned the property as tenants in common.

The important question before the Court was whether their joint tenancy had been severed. A joint tenancy, the Court held, may be severed in four ways. First, by a unilateral act of one joint tenant, second, by mutual agreement, third, by any course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common, and fourth, by application under section 15 of the Law of Property Act.

In this case, the Court held based on the totality of the evidence, the course of dealing established a severance of joint tenancy. Some of the evidence the Honourable Madam Justice B.B. Johnston relied on included (1) Mr. Flock moved out of the home after separation and stopped contributing financially to the mortgage payments or maintenance of the house; (2) Mr. McKen and Ms. Flock lived in the house for years, and both paid for the mortgage and maintenance of the house, and (3) Ms. Flock and Mr. Flock were engaged in contentious litigation partly over the division of matrimonial property for years.

Based on these factors the Court held the parties had not intended for the right of survivorship to apply, and for Mr. Flock to receive the entire house. Therefore, the house was owned as tenants in common. Mr. Flock received one half of the fair market value of the property, and Mr. Mcken received the other half of the fair market value of the property.

This case demonstrates how significant different forms of ownership are. This case also shows the importance of removing a former spouse's name from title of property you reside on, because even though Mr. Flock had not resided on the property for years, he was still entitled to one half of the fair market value when Ms. Flock died.