Q. I have been divorced from my former wife for several years. We had one child together. My ex-wife had two children from a previous relationship whom I am still close to. I have since commenced a de-facto relationship with my new partner and we have purchased a home together. My partner has two adult children from her former relationship, they are living with us currently and are financially dependent on us.
Ideally we want each other’s share of the home to flow through to our respective children (including my ex-step children) on the death of the survivor. We have been informed there might be issues with this depending on whether it is owned as joint tenants or tenants in common. Can you explain the difference and what these issues are?
A. When you buy an asset with another person, the asset is either bought as “Joint Tenants” or “Tenants in Common”. At the time you signed the contract to buy the property with your new spouse, the solicitor should have explained the difference between the two types of ownership. As this has consequences in terms of who receives what on your death.
As “Joint Tenants”, ownership is held equally. On the death of one of the owners, the property title will pass to the surviving owner without the asset forming part of the deceased’s estate.
If the asset is purchased as “Tenants in Common”, each owner declares a percentage of ownership of the asset. Unlike Joint tenants, you can hold unequal interests. On the death of one of the owners, the deceased owner’s interest in the asset forms part of their estate and is dealt with in accordance with the terms of the will.
So if you purchased the asset with your new partner as joint tenants, when one of you dies, the asset will revert to the surviving partner. If this is not what you intend then you can change from joint tenancy to tenancy in common. Interestingly the other joint tenant generally has no ability to prevent you doing so. Importantly you must make the title change when you are alive as this change cannot be made by your will after you die.
Your Will is the legal document that sets out your wishes for the distribution of your estate assets on your death for assets not owned as joint tenants.
Superannuation assets however are held in trust on your behalf and are generally not dealt with under your Will unless you nominate the benefit to be paid to your “Estate”. The legal mechanism to instruct the Trustee on how to distribute the proceeds of your Superannuation on your death is a “Death Benefit Nomination”.
A Superannuation lump sum death benefit can only be paid to an eligible beneficiary. An eligible beneficiary must be a spouse, your child, an individual financially dependent upon you, or an individual you have an interdependency relationship with.
An interdependency relationship is defined as a close personal relationship, where you live together, one or each of you provide financial support and domestic support and personal care.
In your case, it sounds like you have potential beneficiaries that fit all these criteria.
Your scenario whilst complex is not uncommon. You need to be clear about who is entitled to receive what and when. A specialist estate planning lawyer can draft wills that reflect your wishes and reduces the risk of assets ending up in the wrong hands. The advice should incorporate Superannuation Death Benefit Nominations that are valid and reflect your wishes.