A client came to us last month, a widow who had lived in her Brooklyn brownstone for 40 years. Her husband had passed, and she was now the sole name on the deed. “What does this mean for the house?” she asked. “For my children?” She had, by operation of law, become a tenant in severalty. And that single fact changed everything about how that property would one day pass to the next generation.
The term “tenancy in severalty” often causes confusion. People hear “several” and assume it means multiple owners. The opposite is true. The name comes from the concept of being “severed” from any other owner. It is the simplest, most absolute form of property ownership—one person, one entity, one owner on the deed. Full stop.
What Tenancy in Severalty Really Means
When you own property as a tenant in severalty, you have complete and undivided control. You can sell it, mortgage it, lease it, or give it away without needing anyone else’s signature. This is fundamentally different from the two forms of co-ownership we typically see in New York.
The first is Joint Tenancy with Right of Survivorship, common for married couples. When one owner dies, their interest automatically passes to the surviving joint owner. The property bypasses the probate process entirely—a direct, automatic transfer. The second is Tenancy in Common, often used by unmarried partners or business associates. Each person owns a distinct share—say, 60/40 or 50/50. When a tenant in common dies, their share becomes part of their estate, distributed according to their will or by state law. It does not go to the other owners.
Tenancy in severalty has no co-owners to complicate things. The owner holds 100% of the title. This provides clarity during the owner’s lifetime but creates a critical planning obligation for what happens after.
The Estate Planning Implications of Sole Ownership
The total control that comes with tenancy in severalty has a profound consequence for your estate plan. Because there is no automatic right of survivorship, a property held in severalty is a probate asset. Upon your death, it does not automatically transfer to anyone. Instead, it must be formally passed on through the Surrogate’s Court.
How that happens depends entirely on whether you have a deliberate plan in place.
If you have a valid will, the property will be distributed to the beneficiaries you named. The will’s executor is responsible for managing the property through the probate process until the title can be legally transferred.
If you die without a will—intestate—the situation becomes far more complicated. Your property will be distributed according to New York’s rigid succession hierarchy. Under Estates, Powers and Trusts Law (EPTL) § 4-1.1, the law dictates who gets what. If you have a spouse and children, they share the estate. If you have no spouse but have children, they inherit everything. If you have no spouse or children, the law looks to your parents, then your siblings, and so on.
The state’s plan is unlikely to match your own. You may have wanted the property to go to a specific child, a close friend, or a charity. Without a will or trust, those intentions are legally irrelevant. The state decides for you, and that process can create conflict and expense for the family you leave behind.
When Does This Form of Ownership Make Sense?
While my client became a tenant in severalty through survivorship, many people choose this form of ownership intentionally. It is the default for any unmarried individual buying property alone. There are other common scenarios where we see it used:
- A Single Person: An individual purchasing their first home or a condominium will hold the title in severalty.
- A Business Entity: When a corporation or an LLC purchases a commercial building, the entity itself is the sole owner—a tenant in severalty. The property belongs to the business, not the individuals who own the business.
- A Married Person’s Separate Property: An individual might use pre-marital or inherited funds to buy an asset they intend to keep separate from the marital estate. Holding it as a tenant in severalty makes that intention clear.
In each case, the clarity of ownership is a benefit. But it places the full weight of stewardship on the owner. You have absolute control, which means you also have the absolute responsibility to direct what happens when you’re no longer there to exercise that control.
For the widow with the brownstone, our work was clear. We needed to create a plan—either through a will or by placing the home into a trust—to ensure her wishes for her children were honored and that the generational asset she and her husband built would not become a source of legal friction in Surrogate’s Court.
The first prudent step for any sole property owner is to confirm exactly how your property is titled. If your deed lists you as the only owner, we can conduct a review to align that ownership structure with your existing will and trust documents, closing any gaps that could leave your legacy to chance.
