A client recently sat in my Manhattan office, holding a deed from 1988 for a home she and her late husband bought in Brooklyn. His name was right there next to hers. She assumed that since she was his wife, the house was simply hers now. In many cases, she would be right. But in estate law, assumptions create immense difficulty. The answer to “what happens to the house?” isn’t found in a marriage certificate—it’s written on the deed itself.
How a property is titled determines how it passes to the surviving spouse. That legal language, perhaps written decades ago, dictates the path forward. It decides whether the transfer is a simple administrative task or a matter for the Surrogate’s Court.
The Power of “Right of Survivorship”
For most married couples in New York, a property deed establishes a “tenancy by the entirety.” This is a special form of ownership available only to spouses. It comes with an automatic right of survivorship. When one spouse passes away, the other spouse automatically becomes the sole owner of the entire property by operation of law. The home does not become part of the deceased’s estate and does not need to go through probate.
This is the most straightforward scenario. The transfer is not automatic in the sense that the county clerk’s office knows what happened; you must take action. The surviving spouse typically needs to record the deceased spouse’s death certificate with the county clerk where the property is located. This officially clears the title and shows the surviving spouse as the sole owner.
This legal structure is a default for a reason. New York law, specifically Estates, Powers and Trusts Law (EPTL) § 6-2.2(b), presumes that a property transfer to a married couple creates a tenancy by the entirety, unless the deed expressly states otherwise. This provision was designed to protect the marital home and simplify the transition for the surviving spouse. It is an intentional act of law that views the couple as a single legal entity for the purpose of property ownership.
When the Deed Leads to Surrogate’s Court
The process grows more involved if the property was not held as tenants by the entirety. Two primary situations require a more complex legal process.
First is a “tenancy in common.” This sometimes occurs when couples purchase property before they are married or if the deed was drafted in a specific way. As tenants in common, each spouse owns a distinct, separate share of the property—often 50/50, but it can be different. There is no right of survivorship. When one spouse dies, their share does not automatically pass to the survivor. Instead, it becomes part of their estate. It is then distributed according to the terms of their will or, if there is no will, according to state intestacy laws.
The second situation is when the property was titled solely in the deceased spouse’s name. This might happen for various financing or liability reasons during their lifetime. Upon their death, the entire property is an asset of their estate.
In both of these cases, the surviving spouse cannot simply file a death certificate to clear the title. The property must go through the formal estate administration process in Surrogate’s Court. An executor (if there is a will) or an administrator (if not) will be appointed by the court. Only that fiduciary has the legal authority to sign a new deed transferring the property from the estate to the rightful heir—who may or may not be the surviving spouse, depending on the will or family circumstances.
The Deed is an Instrument of Your Legacy
A house is more than an asset; it is the center of a family’s life. How it is owned and how it passes from one generation to the next is a fundamental part of a family’s legacy. Failing to update a deed or leaving its terms to chance can create unintended consequences, delaying the transfer of a family home and adding stress to an already difficult time. This is not just paperwork. It is stewardship.
The first step is to understand what you currently have by reading the deed itself. If you have a copy of your property deed, our firm can perform a title review to clarify how the property is held and explain the specific steps required in your situation.
