Two brothers buy a townhouse together in Brooklyn. They pool their savings for the down payment and split the mortgage. Years later, one brother marries, has children, and drafts a will leaving everything to his spouse and kids. Then, he dies unexpectedly. His widow assumes she and her children will inherit his half of the townhouse. Instead, she discovers the entire property now belongs to her brother-in-law. Her husband’s will is irrelevant.
This happens more often than people think. The outcome was not determined by a will or a trust, but by a few words typed on the original deed decades earlier. How you hold title to real estate—the legal form of co-ownership—is one of the most consequential and frequently overlooked aspects of an estate plan. It dictates the path of inheritance, and in many cases, it operates outside of Surrogate’s Court entirely.
Tenancy in Common: The Default Arrangement
When two or more unmarried people buy property in New York, the law presumes they own it as “tenants in common.” This is the default arrangement unless the deed explicitly states otherwise. I find many clients are tenants in common without even realizing it.
Think of it as owning distinct, separate shares. If two people are tenants in common, they each own a 50% interest. If there are three, they might each own a one-third share. These shares need not be equal—one person could own 70% and the other 30%. Each owner has total control over their individual share. They can sell it, mortgage it, or—most importantly for estate planning—give it away in their will.
When a tenant in common dies, their share becomes part of their probate estate. It passes according to the terms of their will or, if there is no will, through the state’s intestacy laws. It does not automatically transfer to the other co-owners. This provides flexibility and honors the intentions laid out in a will. For the brothers in our opening story, this is the form of ownership the deceased brother likely intended.
Joint Tenancy: The Right of Survivorship
The alternative that created the problem for that Brooklyn family is “joint tenancy with right of survivorship.” The language is key. For this to be valid, the deed must contain specific phrasing like “as joint tenants with right of survivorship.” New York law is clear on this. Real Property Law § 240-c establishes that a transfer of property to two or more people creates a tenancy in common unless it is expressly declared to be a joint tenancy.
Unlike tenancy in common, joint tenants do not own separate shares. They own the property together in a single, unified interest. The defining feature is the “right of survivorship.” When one joint tenant dies, their interest in the property is extinguished. The surviving joint tenant—or tenants—automatically absorbs that interest and owns the entire property.
This transfer happens instantly by operation of law. It completely bypasses the will and the probate process in Surrogate’s Court. While this can be an efficient way to transfer property, it is also a rigid tool with unintended consequences. An elderly parent might add one child to a deed as a joint tenant for convenience, not realizing they have effectively disinherited their other children from that asset. The deed’s language will override any conflicting instructions in the will.
Tenancy by the Entirety: A Special Protection for Spouses
New York law provides a third option available only to married couples: “tenancy by the entirety.” This is the automatic form of ownership when a married couple purchases real estate together, unless the deed specifies otherwise.
It functions much like a joint tenancy—it includes an automatic right of survivorship, so when one spouse dies, the other automatically becomes the sole owner. But it adds a critical layer of creditor protection. In a tenancy by the entirety, neither spouse can sell or mortgage their interest without the other’s consent. The property is generally protected from the individual creditors of just one spouse. This provides asset protection that joint tenancy does not.
This form of ownership reflects a legal view of marriage as an economic partnership. It is a prudent choice for a primary residence or other significant family assets held by a married couple. Stewardship.
Aligning Your Deed with Your Intentions
The title on your deed is not a technicality—it is a powerful legal instrument that directs the future of your property. An ownership structure that made sense when you bought a property may no longer align with your current family situation or your ultimate wishes for your legacy. A joint tenancy created for convenience can disrupt a carefully crafted estate plan, while a tenancy in common might force your family into a probate process you wished to avoid.
Reviewing how your property is titled is a foundational step in responsible estate planning. The language on that single document can mean the difference between a smooth transfer to your intended heirs and a family dispute that lands in court.
The first step is often the simplest: locate the deeds for your properties. If you are unsure what the language means for your estate, our firm can conduct a deed and title audit as part of a broader review of your estate plan. This ensures the legal reality of your ownership matches the promises you intend to keep.
