Important Note on Planning as Part of Your Refinancing
Family Home
Under the Family Home Protection Act 1976 (as amended), a “family home” is the dwelling in which a married couple ordinarily resides.
Where a family home is registered in the sole name of one spouse, and that spouse dies, the property passes according to succession law – either under the deceased’s will or, if there is no will, under the Succession Act 1965.
The surviving spouse is generally entitled to a legal right share: where there are children, one-third of the estate, and where there are no children, one-half. Frequently, the will (or intestacy rules) leave the family home outright to the surviving spouse.
To transfer the property into the name of the surviving spouse, a personal representative (executor or administrator) applies for a Grant of Probate or Letters of Administration. Once the Grant issues, the personal representative executes an Assent (Form 17) in favour of the surviving spouse. This is lodged with the Property Registration Authority (PRA) to register the spouse as the new owner.
Even where both spouses live in the property, if it remains in the sole name of one spouse, it is often advisable to transfer it into the joint names of both spouses during their lifetimes. This is typically done by way of a Deed of Transfer, creating either a joint tenancy.
This means that upon the death of one joint tenant, the principle of jus accrescendi (right of survivorship) applies: the surviving spouse automatically becomes the sole owner.
This avoids the need for a Grant of Probate in respect of the property, simplifies administration, and ensures security for the surviving spouse.
The transfer is executed by the sole owner in favour of himself or herself and the spouse jointly.
Once the property is held in joint tenancy, the death of one spouse results in the property passing automatically by survivorship to the other spouse. This means no succession application is needed for the property itself, and the surviving spouse can apply to the PRA to simply update the register with a Death Certificate and an application for transmission on death.
The Property Registration Authority (PRA) deals with the registration of ownership and all changes in title. To register the transfer from sole name to joint names, the following are required:
Section 96(5) of the Stamp Duties Consolidation Act 1999 provides an exemption from stamp duty for transfers of property between spouses. A transfer from one spouse to both spouses jointly during their marriage is therefore fully exempt from stamp duty.
The rationale is that such intra-spousal transactions are not treated as taxable conveyances.
Revenue guidance confirms that no adjudication is required where the instrument clearly falls within this statutory exemption.
Section 71 of the Capital Acquisitions Tax Consolidation Act 2003 provides that gifts or inheritances between spouses are exempt from CAT. The Revenue Commissioners’ published directions emphasise that transfers between spouses, whether inter vivos (during lifetime) or on death, are completely exempt. Consequently, no CAT liability arises on the transfer into joint names or on the passing of the property by survivorship.
At Jacob Law LLP, we believe strongly that the family home should be secured in the names of both spouses. For this reason, we charge no fee for arranging a transfer of a family home from the sole name of one spouse into the joint names of both spouses. We view this as a fundamental protection of the family unit rather than a commercial transaction.
If the property is in the sole name of a deceased spouse, it passes under succession law and is transferred to the survivor by Assent after a Grant of Probate or Letters of Administration.
Transferring the property during lifetime from one spouse to joint names creates a joint tenancy, ensuring automatic ownership by the survivor on death and avoiding probate for the property. The transfer is exempt from stamp duty under s.96(5) Stamp Duties Consolidation Act 1999 and exempt from capital acquisitions tax under s.71 CAT Consolidation Act 2003.
Jacob Law LLP, September 2025
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