An unmarried couple buys their first condo together in Manhattan. Eager to build a life, they ask their real estate attorney to title the property so that if one of them passes away, the other automatically owns the whole thing. It sounds simple, a clean way to protect each other without a will. This is often the first time my clients encounter a deed with a “right of survivorship.”
On the surface, it’s an elegant mechanism. But what they have done is more permanent—and has more potential for complications—than they realize. They have just entangled their financial futures in a way that can be very difficult to undo. This simple instruction on a deed can have profound consequences that extend far beyond avoiding probate.
What Joint Tenancy with Right of Survivorship Means
In New York, when two or more people who are not married to each other own property, the default is “tenancy in common.” This means each person owns a distinct, separate share. When one owner dies, their share does not go to the other owners. Instead, it passes to their heirs through their will or, if there is no will, according to state intestacy laws. It becomes part of their probate estate.
A joint tenancy with right of survivorship works differently. The core principle is unity—the joint tenants are seen as a single legal entity with respect to the property. Its key feature is the automatic transfer of ownership. When one joint tenant dies, their ownership interest is extinguished, and the surviving joint tenant—or tenants—absorbs that interest instantly. The property passes outside of the deceased’s estate, bypassing the will and the entire Surrogate’s Court probate process.
This is why it is so popular. It avoids court delays and legal fees associated with probate. For the surviving owner, the process is straightforward: they typically only need to file the deceased owner’s death certificate with the county clerk to clear the title. But this efficiency comes at a cost—a loss of control.
The Hidden Costs of Simplicity
When you add someone to your deed as a joint tenant with right of survivorship, you are giving them a present ownership interest in your property. It is not a future promise; it is a current reality. From that moment on, you can no longer sell, mortgage, or transfer the property without their consent and signature.
This creates several potential problems I have seen play out in my practice:
- Creditor Issues: If your co-owner has financial trouble, their creditors may be able to place a lien on the property. Their debt can become your problem, encumbering an asset you thought was safe.
- Relationship Breakdown: If the co-owners—a parent and child, siblings, or an unmarried couple—have a falling out, one cannot simply remove the other from the deed. The other person is a legal owner. Resolving this can require a costly and contentious partition action, where a court forces the sale of the property.
- Loss of Testamentary Control: The right of survivorship supersedes any instructions in your will. You may write a will leaving your half of the Brooklyn brownstone to your children, but if you own it with a sibling as joint tenants, your sibling gets the entire property. Your will is irrelevant for that asset.
This form of ownership sacrifices flexibility for a narrow benefit. It is a blunt instrument in an area of life that requires nuance and foresight.
The Law Requires Intentional Language
Because the right of survivorship overrides a will and bypasses the courts, New York law demands that its creation be deliberate and explicit. Merely listing two names on a deed is not enough to create a joint tenancy. The default is a tenancy in common.
To establish the right of survivorship, the deed must contain specific language. This requirement is rooted in our state’s property laws, specifically New York Real Property Law § 240-c. This statute clarifies that a disposition of real property to two or more unmarried persons creates a tenancy in common unless the instrument—the deed—expressly declares it to be a joint tenancy.
This means the deed must include words like, “to Jane Smith and John Doe, as joint tenants with right of survivorship.” Without this express declaration, the law presumes the owners are tenants in common, and the property will pass through each owner’s estate upon their death. The language is everything.
A More Prudent Path: The Revocable Trust
While a joint tenancy with right of survivorship offers a simple way to avoid probate for a specific asset, it is rarely the most prudent strategy for overall legacy planning. A far more flexible and protective tool is a revocable living trust.
By placing your property into a trust, you can achieve the same primary goal—avoiding probate—without the significant downsides of joint ownership. As the trustee of your own trust, you retain complete control over the property during your lifetime. You can sell it, refinance it, or change your mind about who should inherit it without needing anyone’s permission.
The trust documents name a successor trustee to manage the asset and beneficiaries who will receive it upon your death. The transfer is private, efficient, and not subject to the Surrogate’s Court. More importantly, it allows for contingency planning. What if your intended beneficiary predeceases you? What if you want the property sold and the proceeds divided? A trust can account for these complexities. A deed cannot.
A deed with right of survivorship is a tool, but it is one with sharp edges. It solves one problem while often creating others. Stewardship of your legacy requires looking beyond simple fixes to find the right strategies.
If you are buying property with another person or considering how to title an existing asset, the language on that deed will have lasting consequences. Before you make a decision, our firm can review the deed itself and discuss how it fits—or conflicts—with your larger estate plan.
