The Question Most Homeowners Never Ask
If you own a property with someone else — a spouse, partner, family member, or business associate — there is a legal question sitting underneath your ownership that most people never think about. It is not whether you own the property. It is how you own it.
In England and Wales, there are two ways to hold property jointly: as joint tenants, or as tenants in common. The distinction sounds technical, but it has profound consequences for what happens to your share of the property when you die, how your estate is taxed, and whether your will has any effect on the property at all.
Joint Tenants: The Right of Survivorship
When property is held as joint tenants, both owners hold the entire property together. Neither owner has a distinct share — they both own all of it. This creates what lawyers call the “right of survivorship”: when one joint tenant dies, the surviving joint tenant automatically becomes the sole owner of the property.
This happens by operation of law, regardless of what the deceased person’s will says. You could write a will leaving your share of the house to your children, but if you hold the property as joint tenants, the survivorship rule overrides your will. The property passes to the surviving joint tenant, full stop.
For many married couples, this is exactly what they want. It is simple, automatic, and means the surviving spouse does not need to go through probate to secure ownership of the family home. There is no delay, no legal process, and no uncertainty.
Tenants in Common: Separate Shares
When property is held as tenants in common, each owner holds a distinct, identifiable share. This is typically 50/50, but it does not have to be — shares can be split in any proportion (60/40, 75/25, or any other ratio).
Crucially, there is no right of survivorship. When one tenant in common dies, their share does not automatically pass to the other owner. Instead, it passes according to their will, or under the intestacy rules if they have no will.
This means you can leave your share of the property to your children, to a trust, or to anyone else you choose. Your co-owner retains their share, but your share follows whatever instructions you have left.
Why the Structure Matters for Estate Planning
Protecting assets for children and grandchildren: If a married couple holds their home as joint tenants, the surviving spouse becomes the sole owner. If that surviving spouse later remarries, the property could pass entirely to their new partner’s family — leaving the first spouse’s children with nothing.
By holding the property as tenants in common, each spouse can leave their share to a trust for their children. The surviving spouse can continue to live in the property (through a life interest in the trust), but the capital is preserved for the children rather than being absorbed into a new relationship.
This is one of the most common estate planning recommendations for families, and it is one of the most frequently overlooked.
Care fee protection: When a local authority assesses someone for care costs, they look at the value of the person’s assets, including property. If a surviving spouse owns the entire property (because it passed to them as sole owner under the joint tenancy), the full value of the property may be taken into account.
If the property is held as tenants in common and the deceased spouse’s share is held in a trust, that share is not owned by the surviving spouse and may not be assessable for care fee purposes. This is a complex area and the rules are subject to the “deprivation of assets” provisions, but for many families it provides an important layer of protection.
Inheritance tax planning: For couples whose combined estate exceeds the available nil-rate bands, the way property is held can affect the IHT calculation. Holding property as tenants in common allows each spouse to use their share as part of their own estate planning — potentially placing it into a trust that uses their nil-rate band, rather than passing it outright to the surviving spouse and deferring (and potentially increasing) the tax liability.
Unmarried couples: For cohabiting couples who are not married, the joint tenancy structure provides a simple survivorship mechanism — but at the cost of flexibility. If the relationship breaks down, severing a joint tenancy is necessary to protect each person’s share. And if one partner dies, the other automatically inherits, which may not reflect the deceased partner’s actual wishes, particularly if they have children from a previous relationship.
The Severance Process
If you currently hold property as joint tenants and want to change to tenants in common, the process is called “severance.” It is straightforward, inexpensive, and does not require the consent of the other joint tenant (though in practice it is usually done by agreement).
A notice of severance is served by one joint tenant on the other, and a Form A restriction is filed at the Land Registry. The process typically costs a few hundred pounds if done through a solicitor, and it does not change who owns the property or in what proportions — it simply changes the legal structure from joint tenancy to tenancy in common.
Severance does not trigger any tax liability. It is not a disposal for CGT purposes, and it does not create an IHT event. It is a purely structural change that gives each owner a distinct share they can deal with independently.
Common Misconceptions
“We own the house 50/50” — This statement is ambiguous. You may own it 50/50 as joint tenants (with survivorship) or as tenants in common (without survivorship). The distinction matters enormously for estate planning, and many couples do not know which structure they have.
“My will covers the house” — If you are joint tenants, your will does not cover the house. The survivorship rule overrides it. Only tenants in common can leave their share by will.
“Changing to tenants in common means my partner could sell their share” — In theory, yes. But for married couples, this is rarely a practical concern. The Family Law Act provides extensive protections for a spouse’s right to occupy the matrimonial home, regardless of ownership structure.
“It’s too complicated” — Severance is one of the simplest legal processes in property law. It takes a few days, costs very little, and can be reversed by mutual agreement if circumstances change.
How to Check What You Have
If you are unsure how your property is held, you can check by:
- Looking at the title register at the Land Registry (available online for a small fee)
- Checking your original transfer deed (TR1 form) from when you purchased the property
- Asking your conveyancing solicitor
If the title register shows a Form A restriction (stating that no disposition by a sole proprietor will be registered unless authorised by a court order), the property is held as tenants in common. If there is no such restriction, it is held as joint tenants.
What You Should Do
If you own property jointly, check the ownership structure. If you hold as joint tenants and your estate plan relies on your share passing under your will, there is a disconnect — your will does not control the property.
For most families with children, tenants in common combined with a protective trust in each spouse’s will provides the best balance of simplicity, flexibility, and protection. It allows the surviving spouse to remain in the home while preserving assets for the next generation.
It is a small structural change with significant long-term consequences. And it is one of the easiest improvements you can make to your estate plan.
Not sure how your property is held? Contact The Legacy Wills Company and we will help you check — and advise on whether a change would benefit your family.