A surviving spouse in New York usually does not need a new deed. Say you were married when you took title together. The law then treats you as tenants by the entirety, a form of ownership only married couples have. At death, the deceased spouse’s share ends and the survivor owns the whole home. There is no probate, no court letters and nothing to record.
The paperwork comes later. At a sale or refinance, the title company will ask for a certified death certificate. It usually also wants a sworn statement (affidavit) that the marriage lasted until death.
This depends on how the deed reads and whether you were married when you took title. The rules apply statewide; only where you find the deed differs by county.
Start with the last recorded deed
Find the deed that put the home in both names:
- Manhattan, Brooklyn, Queens and the Bronx: on ACRIS, the city’s online property records, run 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.
In the part naming the buyers, look for words about your relationship (“husband and wife,” “spouses”) and ownership (“as joint tenants,” “as tenants in common”).
How New York reads the deed
New York law sets default rules for co-owners (state co-ownership law):
- A married couple owns as tenants by the entirety, unless the deed expressly says joint tenancy or tenancy in common. The deed does not need to say “tenants by the entirety.”
- Two or more people who are not married own as tenants in common, unless the deed expressly says joint tenancy. Tenants in common each own a share, with no automatic passing to the survivor.
- Unmarried people described as spouses own as joint tenants, unless the deed says tenancy in common.
- Co-op shares and the lease transferred to a married couple on or after January 1, 1996, are also owned as tenants by the entirety, unless the transfer says otherwise.
This only works if you were married when the home was deeded to you. A couple who bought before marrying does not switch to tenants by the entirety by marrying later. They own as tenants in common, unless their deed said joint tenancy or described them as spouses before they married.
What happens at death, by type of ownership
| Deed shows | At first death | New deed? | 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 signs | Yes |
| Deceased’s name only | All to estate | Estate signs | Yes |
| Divorced before death | Half to estate | Estate signs | Yes |
The ET-117 is the New York estate tax release, explained below.
Tenancy by the entirety and joint tenancy
Both pass the home to the survivor automatically. Nothing passes under the will or to heirs, no letters are needed, and the survivor can sell or mortgage alone.
The New York estate tax lien, a claim the state holds on a deceased owner’s property, does not reach the home either. State tax law removes it from a home spouses held as tenants by the entirety (state estate tax law). The Tax Department says a release (Form ET-117) is needed for all deaths “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, the spouses were not the only joint tenants. The title company will then look at the estate tax position before relying on that exception.
Tenancy in common
The home does not pass automatically. The deceased spouse’s half goes through the will or to the heirs, even if you inherit it. At a sale, you sign for your half and the executor or administrator signs for the estate’s half. An ET-117 is needed for the estate’s half. An affidavit cannot fix this.
Home in the deceased spouse’s name alone
You are not on the deed, and being the spouse gives you no power to sign one. The home goes through the estate. That needs letters from the Surrogate’s Court, which handles estates, or proof of who the heirs are. See buying or selling from an estate for the title company’s requirements and selling an inherited house or apartment for steps before listing.
Divorce ends tenancy by the entirety
Tenancy by the entirety depends on the marriage. When a court grants a divorce, the former spouses become tenants in common, and the home no longer passes automatically to the survivor. New York’s highest court confirmed this rule in a 1977 decision (court decision). The same decision held that a separation without a court order does not end it.
That is why the title company asks you to confirm the marriage lasted. After a divorce with no new deed, each former spouse keeps a half, and the deceased one’s half goes to their estate.
Do you need to record anything?
No law requires you to record a new deed, a death certificate or an affidavit after your spouse dies. Ownership passes automatically. The land records will still show both names until the home is next sold or transferred, and that is normal.
You need a new deed only to change ownership, such as adding a new spouse, a child or a trust. That is a new transfer with its own forms and costs. Some title insurers suggest recording a copy of the death certificate with your next deed, to keep the records clear. Whether a death certificate or affidavit can be recorded on its own 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 the title company will ask for when you sell or refinance
The title search will show a deed to both spouses and none out of the spouse who died. The title report will list the death as something to clear. Expect:
| Item | Purpose |
|---|---|
| Certified death certificate | Proves the death |
| Surviving spouse affidavit | Confirms the marriage and that you now own the home alone |
| Marriage date, if deed is unclear | Shows you were married before the deed |
| Judgment and lien searches | Checks for debts against you that affect the title |
The surviving spouse affidavit is a title insurer’s form, not one set by law. On a typical form, you state the date of your marriage. You swear that you held title as spouses and stayed married until death, with no divorce, annulment, separation order or separation agreement. You also give the date of death, shown by an attached certified death certificate. The form also asks about wills, estate taxes and debts. The title company supplies its own version.
If the deed names two people with no stated relationship, expect a request for proof you were married on the deed date. That is usually the marriage date in the affidavit, and sometimes a marriage certificate.
On a refinance, the same requirement applies, and you sign the new mortgage alone. If you keep the existing loan, federal rules protect you. You can ask the servicer to confirm you as the new owner so it deals with you, and the lender cannot demand full repayment just because your spouse died. See 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 building’s own procedure. Automatic spousal ownership covers only shares transferred to spouses on or after January 1, 1996. Check how older stock certificates were issued.
Details for attorneys and title professionals
- The four co-ownership defaults come from four parts of the same state law: tenants in common as the general default, tenancy by the entirety for spouses, the co-op share rule from 1996, and joint tenancy for unmarried people described as spouses.
- Divorce. The 1977 decision of New York’s highest court says: “Upon termination of a tenancy by the entirety through divorce, the parties become tenants in common.”
- Estate tax. The “no ET-117” result for tenancy by the entirety rests on the state tax law that removes the lien from that interest. The Tax Department’s own exception is worded only as “the only joint tenants.” With a third party on the deed, check the underwriter’s practice.
- Sample affidavit. One underwriter’s form is Stewart’s affidavit to establish surviving tenant by the entirety. Besides the items above, it covers the surviving spouse’s right of election (a spouse’s right to claim a share of the estate).
- Existing loan. The protection for a survivor who keeps the loan comes from the federal successor in interest rules and the federal due-on-sale exemptions.
Official sources
- EPTL 6-2.2(a) to (d), tenancy in common, joint tenancy and tenancy by the entirety
- Tax Law § 975(e), 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