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Joint Tenancy & the Right of Survivorship in New York State Law

Friends in new home after unpacking

If you are interested in owning property with other people, one option is joint tenancy. This type of ownership has a right of survivorship, meaning it automatically passes to other owners when one owner dies, allowing you to avoid probate. New York law assumes that property is owned by tenants in common, which does not have a right of survivorship. You'll need to understand how to create and sever joint tenancy if you are keen on avoiding probate.

Tip

New York recognizes joint tenancy with rights of survivorship, which means that if one owner dies, the other owner inherits the entire property.

Types of Tenancies in New York

When property is owned by joint tenants with rights of survivorship, the property is equally distributed among the remaining owners when one of the owners dies. The property is owned in equal shares by all the owners, and every owner has access to the entire property. By contrast, property in New York also can be owned by tenants in common, which means the property does not automatically pass to the other owners. Instead, it passes according to what is in the deceased owner's will, or intestacy laws.

Creating a Joint Tenancy with Rights of Survivorship

New York has four requirements for joint tenancy. All owners must have the same interest in the property (i.e., equal percentages of ownership). The same legal instrument, such as a deed, must have conveyed the interest in the property to all the owners as joint tenants. This must have occurred at the same time -- in other words, you cannot add an additional joint tenant at a later date. Finally, all owners must be able to possess and access the entire property.

If the requirements for a joint tenancy are not met, the property instead will be owned by tenants in common. Tenants in common each own their own share of the property, and if one of them dies, the deceased tenant's ownership passes to her heirs, not the other tenants.

However, New York does permit a split joint tenancy and tenancy in common ownership, where some owners have joint tenancy, and others possess the property as tenants in common.

Severing Joint Tenancy

Any of the joint tenants may sever the joint tenancy, which changes the ownership of the property to tenancy in common. To sever joint tenancy, an owner simply has to transfer his interest in the property to someone else. He does not need permission from the other owners to do so. Moreover, an owner may transfer his share of the property to a third party, and then have the interest transferred back to himself. Even in this case, the joint tenancy is severed.

Married Couples: Tenancy by the Entireties

If property is conveyed to a married couple in New York, it is presumed that the property is owned as tenants by the entireties, unless the legal instrument specifically states that the propery is owned as joint tenants or tenants in common.

Tenancy by the entireties has the same survivorship rights as joint tenancy, except it is only available to married couples. However, tenancy by the entireties prevents the creditors of one spouse from going after the property, as both spouses have an undivided right to the whole. A tenancy by the entireties is only severed by death of one spouse, by divorce or by a transfer of the property with the consent of both spouses.

About the Author

Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."

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