When you buy a property with someone else, most commonly a spouse or partner, how you structure the legal title can have significant consequences for what happens to the property when one of you passes away. One key feature that often goes unnoticed is known as a survivorship destination.
In this article, we’ll explain what a survivorship destination is, how it works under Scots Law, and why it’s vital to check what’s written in your title deeds if you’re planning your estate or making your Will.
What Is a Survivorship Destination?
A survivorship destination is a clause in your property title that determines what happens to the ownership of the property if one of the owners dies. It is commonly phrased as:
“equally between them and to the survivor of them”.
This simple line carries powerful legal weight. It means that if one owner dies, their share of the property automatically passes to the surviving owner. There’s no need for Confirmation (the Scottish equivalent of Probate), and it overrides any Will the deceased may have made in relation to their share of the property.
In Scots law, this kind of clause is known as a special destination, and it takes effect immediately upon death.
Can a Survivorship Destination Be Removed?
Yes, but it’s essential to seek legal advice before making any changes. To remove a survivorship destination (also known as evacuating the destination), both parties must agree. Once the parties agree, they must then enter into a new disposition or deed of evacuation, which then must be signed and registered. Simply transferring your share to your partner does not automatically remove the survivorship clause. Unless formally addressed, you may still retain an entitlement to your former share if your partner passes away.
What Happens on Divorce?
Under Section 2 of the Succession (Scotland) Act 2016, a survivorship destination is automatically evacuated on divorce. This means that neither party will automatically inherit the property upon the death of the other. However, this does not resolve the issue of who gets to stay in or own the property. Those matters must be negotiated or resolved by agreement or court action.
Are There Alternatives?
Yes. If you wish to avoid the automatic transfer of ownership, your title can be structured as:
“equally between them and to their respective executors and assignees”.
This means that your share in the house will be treated as part of your estate. If you die, your share will pass to whoever you name in your Will, or under the law of intestacy if no Will exists.
This also gives you the flexibility to:
- Leave your share to your children, while granting your partner a liferent (the right to live in the property for life).
- Minimise care cost contributions. If only one partner’s name remains on the title, the full property value may be considered. But if the title is held equally, only half the value may be assessed for care contributions.
Frequently Asked Questions
Q: How do I find out if there's a survivorship destination on my property?
A: You can ask your solicitor to check your title deeds. The survivorship clause will appear in the legal wording of the disposition (title) registered in the Land Register.
Q: Can I change a survivorship destination later?
A: Yes, but it must be done formally. Both parties must agree to and sign new documentation, which must then be registered with the Registers of Scotland.
Q: Will my Will override a survivorship destination?
A: No. A survivorship destination takes precedence over a Will. If it exists, your share will automatically pass to the surviving co-owner regardless of what your Will says.
Q: What happens if one of us dies and there is no Will, but the title includes a survivorship destination?
A: If there’s no Will, but your property title includes a survivorship destination, the surviving co-owner will automatically inherit the deceased’s share of the property—even in the absence of a Will. This means the deceased’s family, including children from previous relationships, will not inherit any part of the property. The survivorship destination takes precedence and bypasses intestacy laws.
Q: Can I include a liferent for my partner but still leave my share to my children?
A: Yes, this is one of the main reasons people choose to remove a survivorship destination. Without it, you can specify in your Will that your partner has a liferent (the right to live in the property for life), while leaving ownership of your share to your children. This provides security for your partner while preserving your family’s inheritance.
Why Title Clauses Deserve a Second Look
When you’re buying a house, your solicitor should ask you if you wish to include a survivorship destination. Many people don’t realise they exist, or what they mean, until it’s too late. If you’re planning your estate, reviewing your Will, or have a blended family, it’s essential to seek advice on whether this type of clause remains suitable for your circumstances.
Call Wallace Quinn Today
At Wallace Quinn, we specialise in both residential conveyancing and estate planning. We can help you understand exactly what your title deeds state, advise you on your best options, and take care of any necessary updates or changes.
Get peace of mind that your wishes will be respected.
Call us on today:
Glasgow: 0141 771 3911
Livingston: 01506 353 400
Bathgate: 01506 653 819
or visit our website to arrange an appointment.