I once worked with a client whose brother passed away unexpectedly. The two siblings had co-owned a small investment property in Brooklyn for over a decade. My client assumed he would inherit his brother’s half automatically. He was shocked to learn that because the deed was silent on the form of ownership, New York law presumed they were “tenants in common.” This meant his brother’s 50% share didn’t pass to him—it passed to the beneficiaries named in his brother’s will, a distant cousin. The next year was spent in Surrogate’s Court, untangling an outcome no one had intended.
How you hold title to real estate is not just legal paperwork. It is a fundamental decision that dictates who inherits the single most valuable asset most families own. It can bypass your will entirely or send your property straight into the probate process. This is not a minor detail; it is a critical component of your legacy.
Tenancy in Common: The Default Arrangement
When two or more unmarried people buy property in New York, the law makes a presumption. Under Estates, Powers and Trusts Law (EPTL) § 6-2.2, the default form of co-ownership is tenancy in common. This is what happened in my client’s case.
As tenants in common, each owner holds a distinct, separate, and transferable share of the property. This share does not have to be equal—one person could own 70% and the other 30%. When a tenant in common dies, their share does not automatically go to the surviving co-owner(s). Instead, it becomes part of their estate. It is then distributed according to their will or, if there is no will, according to state intestacy laws.
This structure provides flexibility. It allows a co-owner to leave their interest to their children, a spouse from a different marriage, or a trust. But as my client discovered, it can create immense complications if the co-owners have not coordinated their estate plans. The surviving owner can suddenly find themselves co-owning property with a relative—or a stranger—they never anticipated.
Joint Tenancy with Right of Survivorship: The Automatic Transfer
The alternative for non-married co-owners is joint tenancy with right of survivorship. To create this, the deed must contain specific language, such as “as joint tenants with right of survivorship” or “JTWROS.” The words matter.
Unlike tenancy in common, joint tenants own an undivided interest in the entire property. The defining characteristic is the “right of survivorship.” When one joint tenant dies, their interest is automatically extinguished, and the surviving joint tenant(s) instantly become the full owner(s) of the property. This happens by operation of law, immediately and outside of the probate process.
Your will has no power over property held in joint tenancy. This can be a powerful and efficient estate planning tool, avoiding the time and expense of Surrogate’s Court. However, it can also be a trap. I have seen parents add a child to their deed as a joint tenant for convenience, intending for that child to later divide the property among all siblings. But legally, that one child inherits the entire property. The other siblings are disinherited from that asset, regardless of what the parent’s will says. The deed overrides the will. Stewardship.
Tenancy by the Entirety: A Special Protection for Spouses
New York law provides a special form of ownership exclusively for married couples: tenancy by the entirety. When a married couple takes title to property together, this form of ownership is automatically created unless the deed explicitly states otherwise.
Functionally, it is very similar to joint tenancy. It includes an automatic right of survivorship, allowing property to pass directly to the surviving spouse without probate. But it has one additional, powerful feature: creditor protection. Property held as tenants by the entirety cannot be seized to satisfy the individual debts of just one spouse. For example, if one spouse has a judgment against them from a failed business venture, that creditor generally cannot force the sale of the family home.
This protection is a significant benefit, but it only lasts as long as the marriage. Upon divorce, a tenancy by the entirety automatically converts to a tenancy in common, and that creditor protection vanishes.
A Deliberate Choice, Not an Accident
The way you own property should be an intentional decision, not an afterthought at a real estate closing. For unmarried partners, joint tenancy may seem simplest, but tenancy in common might be more prudent if you have children from previous relationships. For siblings inheriting a family home, the choice depends entirely on their long-term goals for the property and their own individual estates.
The language on the deed is the controlling document. What it says—or what it fails to say—will determine the future of your property. It is a decision that has generational impact and deserves the same careful consideration as the rest of your estate plan.
If you co-own property and are unsure how it is titled, the first step is to locate your deed. Our firm can then schedule a review to analyze how that title aligns with—or conflicts with—your overall legacy goals.
