When an unmarried couple purchases a brownstone in Brooklyn, they rarely pause to consider the generational impact of their closing documents. They sign the paperwork, take the keys, and assume the surviving partner will simply retain the house if tragedy strikes. Nine months later, the survivor finds herself standing in Surrogate’s Court, fighting her deceased partner’s estranged siblings for control of her own living room.
Devastating.
This scenario plays out in our Madison Avenue office more often than I care to admit. The culprit is rarely a lack of love or intention—it is a fundamental misunderstanding of property titles. As attorneys, we spend considerable time drafting wills and establishing trusts, but the reality of real estate is absolute. Your property deed is a primary estate planning document. How you hold title dictates inheritance paths, controls creditor exposure, and determines whether your family spends months trapped in probate court.
To act as a proper steward of your family’s wealth, you must understand exactly how your real estate is titled. Here is how the three primary forms of co-ownership function under state law.
The Default Trap: Tenancy in Common
When multiple people buy a property together, the law has to make an assumption about how they intend to share it. Under the Estates, Powers and Trusts Law (EPTL § 6-2.2), any disposition of real property to two or more unmarried individuals automatically creates a tenancy in common unless the deed explicitly declares otherwise.
Tenancy in common is a highly flexible arrangement, which makes it excellent for commercial real estate investors but potentially disastrous for families. In this structure, each owner holds a distinct, fractional interest in the property. You might own 70 percent while your partner owns 30 percent.
The defining feature of a tenancy in common is the absolute lack of survivorship rights. If you pass away, your share does not automatically transfer to your co-owner. Instead, your fractional share becomes part of your probate estate. It will be distributed according to your last will and testament or, if you die without a will, according to state intestacy laws. This is precisely how the surviving partner in our opening example ended up co-owning her home with her late partner’s siblings.
When an executor assumes their fiduciary duty to settle an estate, discovering a fractional tenancy in common often means entering difficult negotiations with the surviving co-owners. Each tenant in common retains the right to sell, mortgage, or transfer their share to a total stranger without the other owner’s permission. Any co-owner can also force a partition action, compelling the sale of the entire property to liquidate their share.
The Probate Bypass: Joint Tenancy with Right of Survivorship
For families who want seamless transitions, the joint tenancy with right of survivorship serves as a powerful custodial tool. The critical distinction here is the automatic transfer of ownership. When one joint tenant dies, their interest instantly evaporates and is absorbed by the surviving owner or owners.
This transfer happens by operation of law the exact moment death occurs. It completely bypasses the Surrogate’s Court. You do not need a will to make it happen, and a will cannot override it.
However, creating a joint tenancy requires deliberate legal drafting. The deed must explicitly state that the parties are taking title as “joint tenants with right of survivorship.” Additionally, the arrangement relies on strict legal parameters known as the four unities. To form a valid joint tenancy, all owners must:
- Acquire the property at the exact same time.
- Take title on the exact same legal document.
- Hold equal ownership shares.
- Share equal rights to possess the entire property.
If any of these unities are broken—for instance, if one owner secretly deeds their share to a nephew—the joint tenancy is severed. The arrangement immediately reverts to a tenancy in common, destroying the survivorship rights and exposing the property to probate once again.
While joint tenancy efficiently avoids probate on the first death, I always warn clients that it lacks generational control. Once the surviving owner takes full title, they have absolute authority to leave the property to anyone they choose, potentially disinheriting the deceased owner’s children from a prior marriage. Prudent stewardship often requires moving beyond simple joint tenancy and establishing a trust structure to protect the ultimate inheritance.
The Spousal Fortress: Tenancy by the Entirety
Married couples have access to a specialized, highly protective form of ownership known as tenancy by the entirety. In this arrangement, the law treats the married couple not as two individuals sharing a property, but as a single, indivisible legal entity.
Like a joint tenancy, this structure includes an automatic right of survivorship. When one spouse dies, the surviving spouse owns the property outright, free from the delays of the Surrogate’s Court Procedure Act (SCPA). But tenancy by the entirety goes much further in protecting the family home from outside threats.
Neither spouse can unilaterally sell, transfer, or mortgage their interest in the property. You cannot secretly leave your half of the house to someone else in your will because you do not technically own a distinct half.
More importantly, this structure provides a formidable shield against individual creditors. If one spouse incurs significant personal debt or faces an individual lawsuit, those creditors generally cannot force the sale of the primary residence to satisfy the judgment. The property is shielded because the debtor spouse does not actually own a separate, attachable share of the home—the marriage itself owns the home.
Why Your Deed Overrules Your Will
A common misconception is that a well-drafted will covers all assets. We frequently review estate plans where a client has executed a detailed will leaving all their worldly possessions to their children. Yet, upon pulling the deed to their primary residence, we discover they still hold the property as joint tenants with a sibling from a purchase made decades ago.
In a conflict between a property deed and a will, the deed always wins.
Estate planning is not merely a stack of papers signed and forgotten—it is the deliberate organization of your life’s work. Assuming your property titles are correct is a contingency your family cannot afford to leave to chance. Before you assume your home will pass smoothly to your intended beneficiaries, you must pull your actual recorded deed and verify the exact legal language used. To confirm your real estate holdings align with your broader legacy goals, schedule a deed and beneficiary review with our office this week.
