Two brothers in Brooklyn buy a brownstone together. They take title as “joint tenants with right of survivorship.” Years later, the older brother marries, has children, and drafts a will leaving his entire estate—including his half of the brownstone—to his wife and kids. When he dies suddenly, his family is shocked to learn his will is irrelevant. The deed’s survivorship language automatically transfers his half of the property to his surviving brother, disinheriting his own family from their home.
My firm has seen this scenario play out far too often. The language on a real estate deed is one of the most powerful—and misunderstood—elements of an estate plan. It operates independently of a will. If the two documents are not aligned, the deed almost always wins. Stewardship of your legacy requires deliberate attention to every detail, especially how you hold title to your most significant assets.
How New York Law Interprets Co-Ownership
When multiple people own real estate, New York law defaults to a structure called “tenancy in common.” Each owner holds a distinct, separate share. When one owner dies, their share passes to their heirs through their estate, as directed by a will or by state intestacy laws. It does not automatically go to the other co-owners.
To create a right of survivorship, the deed must contain specific language. This is governed by New York’s Real Property Law § 240-c, which states that a disposition of property to two or more people creates a tenancy in common unless the deed expressly declares it to be a joint tenancy. The critical words are often “as joint tenants with right of survivorship.”
For married couples, a special form of ownership called “tenancy by the entirety” exists. This is similar to a joint tenancy but is available only to spouses. It provides automatic survivorship rights and offers additional protection against creditors. The law presumes married couples intend to hold property this way unless the deed specifies otherwise.
The Intended Purpose vs. The Unintended Consequences
The primary benefit of a right of survivorship is efficiency. Upon the death of one owner, their interest in the property transfers to the surviving owner immediately and automatically. The property does not need to pass through the probate process in Surrogate’s Court, which saves time and money. For a married couple owning their primary residence, this is often the most prudent arrangement. It ensures the surviving spouse remains in the home without legal interruption.
The problems arise when this tool is used without considering its full implications. I often see parents add a child to their home’s deed as a joint tenant, thinking it’s a simple way to avoid probate. But this act has immediate consequences. The parent has just made a gift of a portion of their property. If they want to sell or refinance the home, they now need the child’s consent. The property could also become exposed to the child’s creditors or a future divorce settlement.
Worse, as in the case of the two brothers, it can lead to unintentional disinheritance. If a parent adds only one of their three children to the deed, that one child will inherit the entire property—regardless of what the parent’s will states. The intention for an equal distribution is defeated by a few words on a document signed years earlier.
A More Intentional Approach to Property Transfer
Holding title with survivorship rights is a valid strategy, but it is a blunt instrument. It is not a substitute for a well-considered estate plan. For many families, especially those with complex dynamics or multiple heirs, better tools exist for managing real estate.
One of the most effective is a revocable living trust. By deeding your property into a trust, you retain complete control over it during your lifetime. You can act as the trustee, managing the property just as you always have. The trust document then serves as the instruction manual for what happens upon your death. It can direct the property to be sold and the proceeds divided among your children, or it can allow one child to live in the home under specific conditions.
A trust provides far more nuance and control than a deed. It allows for contingency planning—what if an heir has special needs, is financially irresponsible, or predeceases you? A trust can account for these possibilities. A deed cannot.
The way your name appears on a deed is not a formality. It is a critical component of your generational wealth plan that dictates who receives your property. It deserves the same deliberate thought as the rest of your estate.
If you co-own property and are unsure how the title is held, the first step is to locate a copy of the deed. Our firm can schedule a 30-minute call to review the document with you and discuss how that ownership structure fits within your larger family and financial goals.
