A client sat in my Manhattan office last week, holding a deed from 1988 for the home she and her husband bought in Brooklyn. He had recently passed away, and she assumed the house was now hers, fully and automatically. But her signature and his were on that deed. A few small words—or their absence—would determine whether her next step was a simple filing with the county clerk or a nine-month journey through Kings County Surrogate’s Court.
I see this situation often. The transfer of real estate after a death is not automatic. The language on the original deed governs everything. In New York, how you hold title is the only thing that matters.
The Decisive Factor: Tenancy by the Entirety vs. Tenants in Common
For a married couple, property is typically held in one of two ways. The difference is critical.
The most common form for spouses is Tenancy by the Entirety. This ownership structure is available only to married couples and includes an automatic “right of survivorship.” When one spouse dies, the property interest passes directly to the surviving spouse by operation of law. The property does not become part of the deceased’s estate and avoids the probate process. This is the simple path most couples intend when they buy a home together.
The alternative is Tenants in Common. If a deed does not specify a right of survivorship, New York law defaults to this arrangement. Each spouse owns a distinct, separate share of the property. When one spouse dies, their share does not automatically transfer to the survivor. It becomes an asset of their estate, distributed according to their will or, if there is no will, by state intestacy laws. The surviving spouse could find themselves co-owning their home with their children, stepchildren, or other relatives.
The Path for Property Held with Right of Survivorship
If your deed establishes a Tenancy by the Entirety, removing your deceased spouse’s name is a straightforward administrative process, not a court proceeding. The goal is to update the public record to reflect your sole ownership.
To do this, we prepare and file two key documents with the county clerk where the property is located:
- A certified copy of the death certificate.
- An Affidavit of Surviving Tenant, a sworn statement affirming the facts of the joint ownership and the death of one owner.
Filing these documents creates a clear chain of title, showing you are now the sole owner. This is essential for any future sale or mortgage. While ownership transfers at the moment of death, this paperwork formally memorializes it and prevents future title problems.
When Surrogate’s Court Becomes Necessary
If the deed names you and your spouse as “tenants in common,” the process is more involved. The deceased’s share of the property is a probate asset. The will must be submitted to Surrogate’s Court for validation, and an Executor must be appointed.
The Executor—who may or may not be the surviving spouse—manages the estate’s assets, including its share of the real estate. To clear the title, the Executor eventually signs an Executor’s Deed, transferring the deceased’s interest to the heir named in the will. Only then can the surviving owner claim full ownership or sell the property.
This is not a minor technicality. New York’s Real Property Law (RPL) § 240-c creates a legal presumption that a deed given to two or more people creates a tenancy in common, unless the document expressly declares it to be a joint tenancy. That single phrase—”as joint tenants with right of survivorship”—or its absence carries immense weight.
The difference is stark: one path is paperwork, the other is a court process. Understanding which path applies to you begins with a careful reading of your deed. The language on that document is a critical component of your family’s generational planning. A prudent first step is to locate and read your deed. If the language is unclear, we can review the document to determine what is needed to protect your home.
