In most cases a surviving spouse in New York does not need a new deed. If the couple was married when they took title together, New York presumes they own the property as tenants by the entirety, and the deceased spouse’s interest ends at death. The survivor becomes the sole owner without probate, without letters and without recording anything. The paperwork comes later: when the survivor sells or refinances, the title company will ask for a certified death certificate and usually an affidavit confirming the marriage lasted until death.
That answer depends on how the deed reads and whether the couple was married when they took title. The rules below are statewide; only where the deed is found differs by county.
Start with the last recorded deed
Everything turns on how the couple took title. Pull the deed that put the property in both names.
- Manhattan, Brooklyn, Queens and the Bronx: the deed is on ACRIS, maintained by the NYC Department of Finance’s City Register (how to read ACRIS for title).
- Staten Island: Richmond County Clerk.
- Westchester: Westchester County Clerk, land records.
Read the grantee clause for words describing the relationship (“husband and wife,” “spouses”) and the ownership (“as joint tenants,” “as tenants in common”).
How New York reads the deed
EPTL 6-2.2 sets default rules for co-owners:
- A conveyance of real property to a married couple creates a tenancy by the entirety, unless the deed expressly says joint tenancy or tenancy in common (6-2.2(b)). The deed does not need to say “tenants by the entirety.”
- A conveyance to two or more people who are not married creates a tenancy in common, unless the deed expressly declares a joint tenancy (6-2.2(a)).
- A conveyance to unmarried people described as spouses creates a joint tenancy, unless the deed says tenancy in common (6-2.2(d)).
- Co-op shares and the proprietary lease, transferred to a married couple on or after January 1, 1996, are also held by the entirety unless the transfer says otherwise (6-2.2(c)).
The presumption applies only if the couple was married at the time of the conveyance. A couple who bought together before marrying does not convert to a tenancy by the entirety by marrying later. Unless their deed said joint tenancy, or described them as spouses before they were married (6-2.2(d)), they hold as tenants in common.
What happens at death, by form of ownership
| Deed shows | At first death | New deed needed? | ET-117? |
|---|---|---|---|
| Spouses, tenancy by entirety | Survivor owns all | No | No |
| Spouses, joint tenancy | Survivor owns all | No | No |
| Spouses, tenancy in common | Half to estate | Estate conveys | Yes |
| Deceased’s name only | All to estate | Estate conveys | Yes |
| Divorced before death | Half to estate | Estate conveys | Yes |
Tenancy by the entirety and joint tenancy
Both carry a right of survivorship. Nothing passes under the will or by intestacy, no letters are needed, and the survivor can sell or mortgage alone.
The New York estate tax lien also does not reach the property in these cases. Tax Law § 975(e) divests the estate tax lien from an interest the decedent and surviving spouse held as tenants by the entirety, and the Department of Taxation and Finance says a release of lien (Form ET-117) is required for all dates of death “unless the decedent and surviving spouse held real property as the only joint tenants” (Tax Department). If a third person was also on the deed with the spouses, the spouses were not the only joint tenants, and the title company will analyze the estate tax position before relying on that exception.
Tenancy in common
There is no survivorship. The deceased spouse’s half passes under the will or intestacy, even if the survivor inherits it. At a sale the survivor signs for their half and the executor or administrator signs for the estate’s half, with an ET-117 for the estate’s interest. An affidavit cannot cure this.
Property in the deceased spouse’s name alone
The survivor has no record title, and being the spouse gives no authority to sign a deed. The property goes through the estate, with letters from the Surrogate’s Court or heirship proof. See buying or selling from an estate for title’s requirements and selling an inherited house or apartment for the pre-listing steps.
Divorce ends the tenancy by the entirety
A tenancy by the entirety depends on the marriage. When a divorce judgment is entered, the former spouses become tenants in common, and survivorship ends. The Court of Appeals stated the rule in Kahn v. Kahn, 43 N.Y.2d 203 (1977): “Upon termination of a tenancy by the entirety through divorce, the parties become tenants in common.” The same case held that a separation without a judicial decree does not end the tenancy.
This is why title asks the survivor to confirm the marriage was continuous. A divorce that was never followed by a new deed leaves each former spouse with a half interest, and the deceased former spouse’s half goes to their estate.
Do you need to record anything?
No statute requires the survivor to record a new deed, a death certificate or an affidavit after the spouse dies. Title passes by operation of law. The land records will still show both names until the next conveyance, and that is normal.
A new deed is needed only when the survivor wants to change ownership, for example to add a new spouse, a child or a trust. That is a new transfer with its own forms and costs. Some underwriters suggest recording a copy of the death certificate with the survivor’s next deed to clarify the chain of title. Whether a standalone death certificate or affidavit will be accepted for recording varies by recording office, so confirm before submitting one.
The practical step now is to order certified death certificates, which can take weeks (processing times).
What title will ask for at a sale or refinance
When the survivor sells or refinances, the title search shows a deed to both spouses and no deed out of the deceased spouse. The title report will raise the death as a requirement. Expect:
| Item | Purpose |
|---|---|
| Certified death certificate | Proves the death |
| Surviving spouse affidavit | Confirms marriage and survivorship |
| Marriage date, if deed is unclear | Shows marriage before the deed |
| Judgment and lien searches | Checks the survivor’s title |
The surviving spouse affidavit is an underwriter form, not a statutory document. A typical form, such as Stewart’s affidavit to establish surviving tenant by the entirety, has the survivor state the date of the marriage, swear that the couple held title as spouses and remained married until death with no divorce, annulment, separation decree or separation agreement, and that the decedent died on a stated date shown by an attached certified death certificate. It also covers wills, the spousal right of election, estate taxes and debts. The title company supplies its underwriter’s version.
If the deed is to two people with no stated relationship, title will want evidence that they were married on the deed date, typically the marriage date in the affidavit and sometimes a marriage certificate.
On a refinance the same requirement applies and the survivor signs the new mortgage alone. A survivor keeping the existing loan is protected by the federal successor-in-interest and due-on-sale rules covered in selling an inherited house or apartment.
Co-op apartments
A co-op has shares and a proprietary lease, not a deed. The managing agent will want the death certificate and will update the stock and lease under the corporation’s own procedure. The entirety presumption covers only shares transferred to spouses on or after January 1, 1996, so check how older stock certificates were issued.
Official sources
- EPTL 6-2.2, tenancy in common, joint tenancy and tenancy by the entirety
- Tax Law § 975, liability for estate tax
- NYS Department of Taxation and Finance, release of lien of estate tax
- Kahn v. Kahn, 43 N.Y.2d 203 (1977)
- Stewart Title, affidavit to establish surviving tenant by the entirety (sample underwriter form)
- NYC Department of Finance, property recording documents