It is a fact of life that most adults get married, or find a partner, and live together as couples.
In an ideal world they will buy a home together, a house, as private apartment or an HDB flat.
For most people, especially in land-scarce Singapore where – even in a depressed market – property prices are very high – their matrimonial home, or the home they share as partners – is likely to be their most valuable asset. How should they own it, and what is to happen when one of them dies?
The first question is one that is rife with legal and social issues. Historically it was not uncommon for the man – the husband – to be the sole breadwinner and for the family home to be in his sole name. That did not mean that the wife did not have what lawyers call a beneficial interest in the property. But it could make it more difficult for her to prove that she had such an interest if the issue became a subject of legal argument. (More about this later.) These days the parties are much more likely to be an equal terms.
I will not be saying anything about divorce. If a married couple get divorced, the court divides up the matrimonial assets which will of course include the home. I am talking about situations where there is no divorce. Instead, the husband or wife dies, or goes bankrupt. Or the couple are living together but not married, or siblings sharing a home. Then it becomes important to determine how the property is owned.
If two or more people own property together, irrespective of whether they are married, they are either joint tenants or tenants in common.
Joint tenants, to the outside world, are like a single person as far as their ownership of property is concerned. They do not have shares in the property; each joint tenant owns the whole thing, together with the other(s). Tenants in common, on the other hand, do own shares in the property: it’s just that those shares have not been physically divided between them.
There is one very important consequence to this apparently subtle difference. When a joint tenant of property dies, the surviving owner – if there is just one – becomes the sole owner. It does not matter that the deceased made a will leaving all his or her property to a third party: that will is ineffective as regards property held on a joint tenancy.
It is different with tenancy in common. Because each tenant in common has a notional “share” in the property, this will pass in accordance with the deceased’s will or the intestacy rules.
Most married couples, and probably most cohabitees, are probably content to own their property as joint tenants, happy to accept that their partner will continue to own the property after he or she has passed on. But the situation does require careful thought.
If there are children, can you ensure that they will inherit the property (if that is what you want)? Not if you are joint tenants. If H and W are joint tenants of their home, and have two children, and H dies, W becomes the sole owner of the (former) matrimonial home. They might each have made wills providing that if he or she, as the case may be, survived his or her spouse, the property would go to the children.
But a will is “ambulatory”: it is only effective on the death of the testator. W might remarry – which would in any event revoke any pre-existing will – and her children with H may end up with no interest in that property.
It would be different if H and W were tenants in common. Then H could leave his share of the property to the children. If the couple are joint tenants they can “sever” the joint tenancy and convert it into a tenancy in common. This way each party can be sure that the children will at least have a share in the property.