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

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New York state allows individuals to own property jointly in one of three ways: as tenants by the entirety, tenants in common, or as joint tenants with rights of survivorship. In the Empire State, tenants in common is the only form of joint property ownership in which survivorship rights are not given.

Tenants in Common in New York State

Tenants in common is a legal arrangement that allows two or more entities to share ownership of real property. Each party can own a different or an equal percentage of the property. In a tenants in common arrangement, all owners who have an undivided interest in the property may sell, transfer or encumber their share at any time, and they do not need consent from the other parties to do so.

When owners buy or inherit real estate together in New York state, they are automatically tenants in common, unless they are spouses. When one owner dies in a tenancy in common, their share of the property passes to their heirs or to the party specified in their will.

A party who no longer wishes to be in a tenant in common arrangement can file an action for partition with the court to divide the interests in the property.

New York State and Tenancy by the Entirety

Only married couples in New York state own property through tenancy by the entirety. Both spouses fully own the property and neither can sell their share. If one spouse dies, the survivor automatically becomes the property’s sole owner even if the decedent’s will names someone else as beneficiary to inherit the property.

If the spouses divorce, they can cancel a tenancy by the entirety, and if they continue to own it together despite the divorce, the arrangement becomes a tenancy in common. This allows both parties to sell or transfer their share of the property without the consent of the other person.

What Is Joint Tenancy With Rights of Survivorship?

In a joint tenancy with rights of survivorship, two or more individuals have equal rights to a property during their lives and survivorship rights when one of them dies. Under this type of agreement, the deceased person’s entire ownership interest automatically transfers to the joint tenancy survivors, which is the main benefit of this type of ownership.

A joint tenancy with rights of survivorship allows the living co-owners to gain control and title over a property without going through probate. In New York state, if the property’s owners are not married to each other and right of survivorship is not mentioned in the property title documents, the arrangement is assumed to be a tenancy in common.

Requirements of Joint Tenancy with Rights of Survivorship

New York law has four requirements for joint tenancy with rights of survivorship:

  • All the property’s owners must own an equal share of a property. When they die, the property is distributed equally among the survivors; no one will own a bigger share than anyone else.
  • All the property’s owners must own the entire property and not limit any joint owner access to any part of it.
  • All the property’s owners must show their interest as a joint tenant with the same legal instrument, such as a deed.
  • All the property’s owners must establish joint tenancy at the same time. Tenants cannot be added to a joint tenancy with rights of survivorship later on.

If these requirements are not met, the arrangement is not a joint tenancy with rights of survivorship; instead, the state will treat it as a tenancy in common. A tenancy in common does not have a right of survivorship – when one owner dies, their ownership interest does not pass to the remaining tenants.

Severing Joint Tenancy with Rights of Survivorship

A joint tenant can sever the joint tenancy arrangement without the consent of the other property owners in the following ways:

  • By executing and delivering a deed conveying the severing joint tenant's interest in the legal title to a third party, whether or not it is in accordance with an agreement requiring the third party to reconvey legal title to the severing joint tenant.
  • By executing a written instrument stating the joint tenant’s intent to sever the tenancy. This will include a deed naming the other joint tenant as the direct grantee of the severing joint tenant’s interest.

The severance of a joint tenancy does not terminate the right of survivorship of the non-severing joint tenants unless the written instrument affecting the severance is recorded in the county of the property’s location before the severing tenant dies.

This will not limit the effect and manner of the severance of a joint tenancy according to a written agreement of all joint tenants, a deed from one joint tenant to another, or by a court-ordered severance.

Joint Tenancy With Rights of Survivorship and Wills

Joint tenancy with the right of survivorship avoids probate and overrules a person's will. However, when the last surviving owner in this type of joint tenancy dies, the agreement is no longer valid, and the property is included in their will and goes to their heirs.

The main disadvantage in a joint tenancy with right of survivorship is that owners of property in this arrangement can't pass on their ownership stake.