Two brothers inherit the family brownstone in Brooklyn where they grew up. One has a family and wants to move in; the other lives in California and wants to sell his share to fund a business. They both assume they can do what they want with their “half,” but the deed their parents filed thirty years ago says otherwise. Suddenly, a legacy intended to bring security has become a source of conflict, and one brother finds his plans are not his to make alone.
In my practice, I see this scenario often. The form of ownership—the tenancy—chosen when a property is acquired has consequences that ripple through generations. It dictates who owns the property, who has control, who inherits, and whether your family will face Surrogate’s Court after you are gone. The language on a deed is not mere paperwork; it is a declaration of intent with the force of law.
Tenancy in Common: The Default Arrangement
When a deed is silent on the form of co-ownership, New York law defaults to tenancy in common. This is the most frequent form of co-ownership we see, and it is the most misunderstood. Each owner holds a distinct, divisible interest in the property. If two people own a property as tenants in common, they do not each own a specific half of the building—they each own a 50% interest in the whole.
The crucial point for estate planning is what happens when one owner dies. That owner’s share does not automatically pass to the surviving owner. Instead, it becomes part of the deceased’s estate. It is controlled by their will and must go through probate. This means the surviving owner could suddenly find themselves co-owning the property with their former partner’s distant relatives, a creditor, or a trust.
New York’s Estates, Powers and Trusts Law is deliberate on this point. EPTL § 6-2.2(a) states that a disposition of real property to two or more persons “creates in them a tenancy in common, unless expressly declared to be a joint tenancy.” The law presumes you want your share to go to your own heirs, not your co-owners, unless you explicitly state otherwise. While this preserves generational wealth, it can also lead to contentious situations if the co-owners’ heirs do not share the same goals for the property.
Joint Tenancy: The Probate Bypass
An alternative is “joint tenancy with rights of survivorship,” or JTWROS. This form of ownership is fundamentally different. Joint tenants own the property together as a single, indivisible whole. The defining feature is the right of survivorship—when one joint tenant dies, their interest is automatically extinguished. The surviving joint tenant instantly becomes the sole owner of the entire property.
This happens by operation of law, entirely outside of the probate process. No will, no trust, and no Surrogate’s Court proceeding is necessary to transfer the title. For many, this efficiency is a primary advantage. It can be a simple way to ensure a home passes directly to a spouse or child without delay or legal expense.
However, this simplicity comes with a trade-off: inflexibility. Once you create a joint tenancy, you cannot use your will to leave your interest in that property to someone else. The deed’s survivorship right overrides any conflicting instruction in a will. This can be a trap for the unwary, disinheriting children from a previous marriage or other intended beneficiaries in favor of the surviving joint owner. It is a powerful tool, but one that must be used with a clear understanding of its consequences.
Tenancy by the Entirety: A Special Shield for Spouses
New York law provides a third option available only to married couples: “tenancy by the entirety.” It functions much like a joint tenancy, including the automatic right of survivorship. Upon the death of one spouse, the other becomes the sole owner of the property without probate.
But it adds a significant layer of asset protection. Property held as tenants by the entirety is considered owned not by either individual spouse, but by the marital unit itself. Consequently, a creditor of just one spouse generally cannot force the sale of the property to satisfy that spouse’s individual debt. This can be a prudent way to shield the family home from business or personal liabilities that affect only one partner.
This protection is not absolute. It only lasts as long as the marriage. If the couple divorces, the tenancy by the entirety is automatically severed, and the ownership converts to a tenancy in common. Each ex-spouse then owns a 50% share that they can sell or leave to their own heirs.
Your Deed Is Part of Your Legacy
The way you hold title to your real estate is as much a part of your estate plan as your will or trust. An intentional choice can ensure a smooth transition of a cherished asset, while an uninformed one can create fractures within a family for years. Stewardship means looking at every detail—and the language on your deed is one of the most important details of all.
The first step is to understand what you currently have. If you own property with others, I recommend you locate the deeds. Our firm can then schedule a review of these documents to confirm how your assets are titled and determine whether that structure aligns with your long-term goals for your family.
