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Deed silent on ownership

Jamaica, NY |
Filed under: Deed to property

My mother and father (married) purchased a home in NY. The deed does not specifically said 'husband and wife'. Is the default ownership tenants in common or tenants by the entirety?

My father died first without a will and he had two out of wedlock children and three children of the marriage. My mother assumed the house transfered to her. She died a year later without a will. The children of the marriage want to sell the house but are being told because the deed is silent the default is tenants in common and the out of wedlock children own 50% and have to agree to the sale.

Attorney Answers 4


In New York, when a husband and wife purchase real estate, and the Deed is silent as to the status of ownership, they are, by default, deemed to own the real estate as "tenants by the entirety" where upon the death of one of the two spouses, the then surviving spouse shall be, the sole and exclusive owner of the entire real estate, without exception, provided that they were, in fact, married at the time of death of the first spouse to pass away.

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If they were married at the time of the purchase than by operation of law (automatically) they are tenants by the entirety. There is no need for the words "husband and wife" to be on the deed. A marriage certificate predating the purchase would be enough.

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Tenants by the entirety. Sounds like a law shook question to me.

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NY EPTL 6-2.2(b) provides that a "a disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common"

Therefore, provide they were married at the time of his death, title would automatically pass to the wife. When the wife died, provided she was still the sole owner of the property, the property would pass according to her will or to her heirs.

Note: This response is for general informational purposes only. No attorney-client relationship is created. No responsiblity shall be taken by the submitting attorney for any individuals acting pursuant to any information contained herein.

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