When married couples purchase real property in New York State, such as a one-family home or condominium unit, they own it as “tenants-by-the-entirety.” The law provides that when one spouse dies, the surviving spouse is, by operation of law, the sole owner of the real property. There is no need to record a new deed. No special language is needed on the deed to create a tenancy by the entirety, though many attorneys will add descriptive language such as “husband and wife.”
If the surviving spouse wishes to sell the property, he or she only needs to provide the purchaser’s title insurance company with a death certificate and an affidavit that the couple were married at the time of death. In most cases this does away with the costly and time consuming probate of a will or commencement of an administration proceeding.
This has not always been the case with cooperative apartments. Prior to 1996, in order for a married couple to have rights of survivorship in a cooperative apartment, the phrase “Joint Tenants with Rights of Survivorship” or “JTWROS” had to be added to the stock certificate. Many people, however, thought the law applying to homes and condominiums regarding a tenancy by the entirety also applied to cooperative apartments and failed to have this language added to their stock certificates. When their spouse passed away, they needed to commence a probate or administration proceeding in Surrogate’s Court, as there was no right of survivorship. This problem was so widespread that the New York law concerning tenants by the entirety was amended in 1996 to provide the same survivorship rights to married couples who purchased cooperative apartments.
The new law, however, is not retroactive, so if you and your spouse purchased a cooperative apartment before the law went into effect, check your stock certificate to see if it has the phrase “Joint tenants with rights of survivorship” or “JTROS” next to your names. If not, you don’t have a right of survivorship. In such a case, you may want to contact your co-op’s managing agent to arrange to have a new stock certificate issued with the appropriate language.
