Two sisters purchase a brownstone in Brooklyn. They put both of their names on the deed, assuming that if one of them passes away, the other will simply take full ownership of the home. Years later, one sister dies unexpectedly. The surviving sister attempts to refinance the property, only to learn from a title company that the deed lacked three critical words. Instead of absorbing her sister’s share, she now co-owns the property with her late sister’s estranged husband, and the transfer is entirely stalled in Kings County Surrogate’s Court.
This is the reality of misunderstanding survivorship rights. A deed is not an abstract legal concept—it is the physical mechanism deciding whether a family home passes seamlessly to the next custodian or becomes entangled in expensive litigation. We frequently see families who assume simply having two names on a piece of paper functions as a contingency plan. It does not. Proper stewardship of real estate requires deliberate, intentional language recorded long before a crisis.
The Default Trap of Tenancy in Common
To understand survivorship, we must first look at what happens when it is missing. Under New York Estates, Powers and Trusts Law (EPTL) § 6-2.2, a disposition of property to two or more unmarried persons creates a “tenancy in common” unless expressly declared to be a joint tenancy. This is a strict statutory presumption.
If a deed simply conveys property to “John Smith and David Jones,” they own the property as tenants in common. Survivorship does not exist here. If John dies, his 50% interest does not evaporate—nor does it transfer to David. Instead, John’s share becomes an asset of his estate. It passes according to his will or, if he died intestate, to his statutory heirs under EPTL § 4-1.1. David is left co-owning the property with John’s beneficiaries. These could be minor children, an estranged spouse, or distant relatives. If the new co-owners cannot agree on management, any of them can force a partition sale.
Creating a Joint Tenancy with Right of Survivorship
When we want a surviving co-owner to automatically inherit a deceased owner’s share, the deed must establish a Joint Tenancy with Right of Survivorship. To achieve this, the language must be explicit. The grantees must take title “as joint tenants with right of survivorship and not as tenants in common.”
Under this structure, the death of one owner automatically extinguishes their interest. The surviving owner instantly holds 100% of the property by operation of law. Because this transfer happens outside the deceased person’s estate, the property completely bypasses Surrogate’s Court. The survivor simply records a certified copy of the death certificate to clear the title.
Creating a valid joint tenancy requires strict adherence to common law principles. To withstand legal scrutiny, the ownership must possess the four unities:
- Unity of Time: Both owners must acquire their interest in the property at the exact same moment.
- Unity of Title: Both owners must acquire their interest through the same deed or instrument.
- Unity of Interest: Both owners must hold equal ownership shares (e.g., 50/50, never 70/30).
- Unity of Possession: Both owners must have an equal right to possess and use the entire property.
If a sole owner wants to add a child to their deed as a joint tenant, they cannot simply draft a deed conveying a half-interest to that child. That breaks the unities of time and title. Instead, the owner must draft a new deed conveying the property from themselves—to themselves and the child—as joint tenants with right of survivorship.
Tenancy by the Entirety: The Spousal Shield
New York property law provides a distinct classification exclusively for married couples: Tenancy by the Entirety. If a legally married couple purchases real estate in New York, the law automatically presumes they take title as tenants by the entirety unless the deed explicitly states otherwise.
This form of ownership includes the automatic right of survivorship, meaning the surviving spouse absorbs full ownership without probate. It also acts as a powerful asset protection tool. Under a tenancy by the entirety, the law views the couple as a single, indivisible legal entity. A creditor holding a judgment against only one spouse cannot force the sale of the home to satisfy the debt. The property remains shielded for the benefit of the non-debtor spouse.
This protection is strictly contingent on the marriage. If the couple divorces, the tenancy by the entirety is instantly severed. Ownership reverts to a tenancy in common, eliminating both the right of survivorship and the spousal creditor protection.
When Survivorship Contradicts Your Will
One of the most destructive scenarios we encounter involves a direct conflict between a deed and a Last Will and Testament. A parent, acting on bad advice, adds one of their three children to their deed as a joint tenant, assuming it will make property management easier as they age. Meanwhile, their will explicitly states that the entire estate is to be divided equally among all three children.
When the parent passes away, the deed supersedes the will. The property passes by operation of law directly to the child named on the deed. That child now owns the home outright and has zero legal obligation to share the proceeds with their siblings. The will—no matter how clearly it expresses the parent’s desire for an equal split—has no jurisdiction over an asset with a survivorship designation. Devastating. This disconnect routinely fractures families and leads to bitter fiduciary litigation under SCPA Article 14.
A deed is not a standalone document—it is an active component of your broader legacy. Do not rely on assumptions about how your co-ownership is structured. Pull your current deed, read the exact language, and schedule a formal title audit with a qualified attorney to verify that your property designations align exactly with your generational planning goals.
