Tenancy by the entirety in New York is a form of co-ownership reserved for married couples that arises automatically when spouses take a deed to real property together. Under New York Estates, Powers and Trusts Law (EPTL) § 6-2.2, any transfer of real property to spouses creates this ownership unless the deed says otherwise.1New York State Senate. New York Estates, Powers and Trusts Law 6-2.2 – When Estate Is in Common, in Joint Tenancy or by the Entirety It gives the surviving spouse the whole property automatically when the other dies, keeps the home out of probate, and offers some protection against creditors of one spouse. That last piece is where New York law surprises people: the protection is real but much narrower than in states like Florida or Delaware.
How You Get It
You don’t ask for a tenancy by the entirety and you don’t need special language in the deed. If the grantees are a married couple, EPTL § 6-2.2 presumes this form of ownership unless the deed expressly says otherwise (for example, by naming the couple as joint tenants or tenants in common).
The marriage has to exist at the moment the deed is delivered. An unmarried couple who buys a house together and marries later does not automatically convert to a tenancy by the entirety. To get the protections, the couple would need to execute a new deed transferring the property to themselves as spouses, which triggers the EPTL § 6-2.2 presumption.
Same-sex spouses qualify. The statute still carries older “husband and wife” language, but it also contains a subsection treating people merely described as spouses who are not actually married as joint tenants instead — the signal being that legal marriage is what matters, not gender.1New York State Senate. New York Estates, Powers and Trusts Law 6-2.2 – When Estate Is in Common, in Joint Tenancy or by the Entirety
What Property Qualifies
New York allows tenancy by the entirety for two kinds of property. The first is real estate: houses, condominiums, land. The second is shares in a cooperative apartment corporation together with the proprietary lease, which became eligible when the legislature amended EPTL § 6-2.2 effective January 1, 1996.2New York State Senate. New York Estates, Powers and Trusts Law 6-2.2 – When Estate Is in Common, in Joint Tenancy or by the Entirety That change matters a great deal in New York City, where many residents own co-ops rather than condos.
Personal property does not qualify. Bank accounts, brokerage accounts, cars, and other non-real-estate assets cannot be held as tenants by the entirety in New York. Joint bank accounts between spouses are governed by a different statute, New York Banking Law § 675, with its own survivorship rules.
What Happens When One Spouse Dies
The defining feature is automatic survivorship. The surviving spouse becomes the sole owner the moment the other spouse dies, by operation of law. There is no probate proceeding, no Surrogate’s Court filing, and nothing has to pass through the deceased spouse’s estate. The surviving spouse already held the whole property alongside the deceased; death simply resolves that overlapping interest into sole ownership.
A will cannot override this. If a spouse writes a will leaving “my share of the house to my sister,” the devise has no effect on property held this way, provided the marriage was intact and the tenancy was still in place at death. New York courts have been consistent on this point.
The administrative step is modest. The surviving spouse records a certified copy of the death certificate with the county clerk’s office where the property sits. Once recorded, the land records show the survivor as sole owner, and the property can be sold or refinanced without further legal process.
What It Actually Protects Against
This is where most of the confusion lives. People hear that tenancy by the entirety shields the family home from creditors, and in some states that is close to true. In New York, it is not.
Private Creditors of One Spouse
Either spouse can individually encumber their own interest in entirety property. If a creditor obtains a judgment against one spouse, the creditor can lien that spouse’s interest and execute on it. The Second Circuit has held that a debtor spouse’s interest in a tenancy by the entirety is not exempt from sale and enforcement by execution in New York.3United States Bankruptcy Court Eastern District of New York. In re Sam M. Mirian, Case No. 822-71597-reg
The protection that does exist is practical rather than absolute. A buyer at the forced sale does not walk away with half the house free and clear. The buyer becomes a tenant in common with the non-debtor spouse, and the non-debtor spouse keeps the right of survivorship.4CaseMine. Hiles v Fisher If the debtor spouse dies first, the buyer’s interest disappears and the surviving non-debtor spouse owns the property outright. That gamble is why a debtor spouse’s interest fetches far less than a clean half-share on the open market. The flip side: if the non-debtor spouse dies first, the debtor spouse becomes sole owner and the creditor or purchaser can reach the entire property.
When both spouses are liable on the same debt — a joint mortgage, a jointly guaranteed business loan — the entirety structure provides no protection at all. The creditor can go after the whole property because both owners are on the hook.
The IRS
Federal tax debt cuts through tenancy by the entirety. Under 26 U.S.C. § 6321, a federal tax lien attaches to “all property and rights to property, whether real or personal, belonging to” the delinquent taxpayer.5Office of the Law Revision Counsel. 26 USC 6321 – Lien for Taxes In United States v. Craft (2002), the Supreme Court held that a spouse’s interest in entirety property is “property” under the federal lien statute and that the state-law treatment of the spouses as a single unit does not block the lien from attaching.6Legal Information Institute. United States v Craft Taking title as tenants by the entirety will not keep the IRS away from a home when one spouse owes back taxes.
Bankruptcy
Federal bankruptcy law contains a provision that looks helpful at first. Under 11 U.S.C. § 522(b)(3)(B), a debtor can exempt entirety property “to the extent that such interest… is exempt from process under applicable nonbankruptcy law.”7Office of the Law Revision Counsel. 11 USC 522 – Exemptions The exemption piggybacks on state protection. Because New York permits a judgment creditor to execute against a debtor spouse’s interest, there is no state exemption to carry over. The Eastern District of New York has put it plainly: “the exemption described in §522(b)(3)(B) does not apply when the subject property is in New York.”3United States Bankruptcy Court Eastern District of New York. In re Sam M. Mirian, Case No. 822-71597-reg
Medicaid Estate Recovery
For older couples, the common question is whether the state can recover long-term care costs from a home held this way. New York is a “probate-only” recovery state. Under New York Social Services Law § 369, the “estate” subject to Medicaid recovery means property “passing under the terms of a valid will or by intestacy.”8New York State Senate. New York Social Services Law 369 Entirety property passes to the surviving spouse by operation of law, not through a will, so it generally sits outside the recovery reach when the first spouse dies. Medicaid also cannot lien the home while a surviving spouse lives there.
The limits are important. When the surviving spouse later dies, whatever remains in their estate is exposed to recovery for the benefits they themselves received. Eligibility, spend-down, and recovery rules are tangled enough that couples relying on title form alone are taking a risk; an elder law attorney is the right call.
How the Tenancy Ends
Three events can end a tenancy by the entirety: death, divorce, or a joint conveyance.
Death of a spouse ends it automatically, with the survivor taking the whole property. Recording the death certificate with the county clerk updates the land records.
A final divorce decree ends it by destroying the unity of marriage that the ownership depends on. The ownership converts to a tenancy in common, giving each former spouse an equal, undivided share they can sell, transfer, or devise independently.1New York State Senate. New York Estates, Powers and Trusts Law 6-2.2 – When Estate Is in Common, in Joint Tenancy or by the Entirety The conversion happens even if the decree says nothing about the house, unless a separation agreement sets different terms. A legal separation does not end the tenancy, because the couple remains married; only a final divorce does.
A joint conveyance ends it voluntarily. Both spouses sign a new deed transferring the property to a third party or restructuring the ownership. One spouse cannot unilaterally deed the underlying ownership out of entirety status to a stranger. A spouse can encumber their own interest alone, but changing the title itself takes both signatures.
Partition is off the table during the marriage. Unlike a tenancy in common, where any co-owner can sue for partition to force a division or sale, entirety property generally cannot be partitioned over a spouse’s objection. Partition typically becomes available only after a divorce converts the ownership into a tenancy in common.