Two unmarried brothers purchase a multi-family brownstone in Brooklyn. They split the down payment, share the maintenance costs, and operate under a simple assumption: if one dies, the survivor takes full ownership of the building. Twenty-five years later, one brother passes away. The survivor prepares to sell the property to fund his retirement, only to discover a harsh legal reality. He does not own the entire building. His brother’s half-interest did not transfer to him. Instead, it is locked up in Surrogate’s Court—destined to be inherited by an estranged widow who has zero interest in maintaining the property.
Why did this happen? Because the original deed was missing a few highly specific words.
We frequently encounter families who assume co-owning a property automatically means the surviving owner inherits the rest. Under New York law, this is rarely the case. The exact phrasing on a property deed dictates whether a home bypasses probate smoothly or becomes the centerpiece of a nine-month estate dispute. Understanding how title is held is the absolute foundation of real estate stewardship.
The Default Presumption: Tenancy in Common
When two or more unmarried people buy real estate in New York, the law makes a strict assumption about their intentions. Under New York Estates, Powers and Trusts Law (EPTL) § 6-2.2, a disposition of property to two or more people automatically creates a tenancy in common unless the deed expressly declares otherwise.
If a deed simply grants property to “John Doe and Richard Roe,” they are tenants in common. Each person owns a distinct, separate, and transferable 50% share of the property. Crucially, a tenancy in common includes absolutely no right of survivorship.
If you own property as a tenant in common and pass away, your share does not vanish. It is not absorbed by your co-owner. It becomes a probate asset. Your fractional ownership passes according to your last will and testament. If you die without a will, it passes to your blood relatives according to New York’s strict intestacy laws (EPTL § 4-1.1). For business partners or unmarried couples who intended for the survivor to keep the house, this default legal presumption can completely derail a deliberate legacy.
Overriding the Default: Joint Tenancy with Right of Survivorship
To ensure a co-owned property automatically passes to the surviving owner, the deed must explicitly override the state’s default rule. We accomplish this by creating a Joint Tenancy with Right of Survivorship.
The deed must contain precise granting language—typically phrasing the transfer to the buyers “as joint tenants with right of survivorship, and not as tenants in common.” When property is held this way, the co-owners hold an undivided equal interest in the whole.
The defining feature of this arrangement is what happens when one owner dies. The deceased owner’s interest extinguishes immediately. The surviving owner automatically absorbs that share by operation of law. The property entirely bypasses Surrogate’s Court. The survivor simply records the deceased owner’s death certificate to clear the title—allowing them to sell, refinance, or hold the property without waiting seven to nine months for a judge to issue Letters Testamentary.
Tenancy by the Entirety: The Marital Shield
New York provides a unique, highly protective form of ownership exclusively for married couples: Tenancy by the Entirety. If a married couple purchases a home together, New York law automatically presumes they take title as tenants by the entirety unless the deed explicitly states otherwise.
Like a joint tenancy, this includes an automatic right of survivorship. When one spouse dies, the surviving spouse owns the entire property outright, completely outside the probate process.
This marital ownership form also offers a vital layer of asset protection. In a tenancy by the entirety, the law treats the married couple as a single, indivisible legal entity. One spouse cannot unilaterally sell or mortgage their half of the property. More importantly, a creditor holding a judgment against only one spouse cannot force the sale of the family home to satisfy the debt. The property is shielded from individual creditor claims, preserving the family’s physical sanctuary.
The Danger of DIY Deed Transfers
Because survivorship rights successfully bypass probate, we often see property owners attempt to use deed transfers as a substitute for proper estate planning. A common scenario involves an aging parent executing a new deed to add an adult child as a joint tenant.
The intent is generational stewardship. The reality?
Disastrous.
Adding a child to your deed creates a cascade of unintended legal and financial consequences. First, you make an immediate, irrevocable legal gift of half your property, which may require filing a federal gift tax return. Second, you immediately expose your home to your child’s liabilities. If your child is sued, files for bankruptcy, or goes through a contentious divorce, your home is considered their asset—fully vulnerable to their creditors.
Finally, there is the issue of capital gains taxes. When you leave property to a child upon your death—whether through a will or a properly drafted trust—the child receives a “step-up” in cost basis to the property’s fair market value at the time of your passing. If they sell the house shortly after, they pay little to no capital gains tax. If you add them to the deed while you are alive, you transfer your original, historically low cost basis to them. When they eventually sell the property, they face a punishing tax bill that could have been entirely avoided.
Using a deed as a makeshift estate plan is a blunt instrument. A properly structured revocable living trust achieves the exact same probate-avoidance goal while fully preserving your tax advantages and shielding the home from your children’s potential creditors.
Securing Your Real Estate Legacy
Estate planning is a deliberate act. It requires examining the legal foundation of every asset you own to ensure it behaves the way you intend upon your passing. You cannot simply assume a co-owned property will transfer smoothly to the survivor. The specific terminology recorded in the county clerk’s office dictates the outcome.
Locate your current recorded deed and read the granting clause. If you are unsure whether the language establishes a tenancy in common or a right of survivorship, or if you need to align your property ownership with your broader legacy goals, schedule a formal deed and estate plan review with our Madison Avenue office.
