If our house isin both mine andmy wife’s name, what happens with the house if one of us dies?

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If our house isin both mine andmy wife’s name, what happens with the house if one of us dies?

We want to make sure that the surviving spouses will continue to be only owner of the house. There should be no issue of succession.

Asked on June 12, 2011 under Real Estate Law, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

In many jurisdictions, including NY, the is a presumption under the law that when parties buying a primary residence indicate they are husband and wife, the form of title is automatically considered a "tenancy by the entirety" unless the deed specifies otherwise. A tenancy by the entirety is a form of joint tenancy with the right of survivorship. This means that each owner is considered an owner of the entire property and when a joint owner dies, the deceased owner's interest in the property extinguishes, leaving the surviving owner to automatically succeed to the deceased owner's former interest.

With a joint tenancy (including a tenancy by the entirety) a deceased owner's interest does not ''pass through'' the decedent's estate, meaning that property held as a joint tenancy cannot be passed to beneficiaries or heirs. Addidtionally, a joint tenant cannot sell their interest in the property without the consent of the other joint owner.


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