A heavy presumption of tenancy in common
Under EPTL § 6-2.2(a), a disposition of real property to two or more people is presumed to create a tenancy in common — no survivorship — unless the deed expressly declares a joint tenancy. New York courts have described this as a "heavy presumption," one that can only be overcome by a "high order of evidence." Without clear, express language in the deed itself, a co-owner's share defaults to going through probate.
The exception: described as husband and wife
Subsection (d) flips the default in one specific situation. A disposition of real property to people who are not legally married to each other, but who are described in the deed as "husband and wife," creates a joint tenancy in them — unless the deed expressly declares a tenancy in common instead. This is the opposite of the general rule: instead of needing express language to get survivorship, an unmarried couple described this way gets it automatically, and would need express language to avoid it.
A real case where this decided ownership
A New York appellate case shows how this plays out. A woman's estate was in dispute over whether she and her partner owned their home as tenants in common or with survivorship rights, in a situation complicated by two prior ceremonial marriages. The court first found the couple's second marriage presumed valid. But it went further, noting that even if they weren't legally married at all, the 1980 deed to their property described them as husband and wife — and under the version of EPTL § 6-2.2(d) in effect since a 1975 amendment, that description alone was enough to create a joint tenancy with right of survivorship, regardless of their actual marital status.
Why the deed's date matters
Because § 6-2.2(d) was amended in 1975, the version of the rule that applies depends on when the deed itself was executed. A court examining an older deed needs to check which version of the statute governed at that time, not simply apply the current text without regard to the deed's actual date.
A newer tool for real estate
Joint tenancy isn't the only way to keep New York real estate out of probate. See our guide to New York's new transfer-on-death deed for a tool that avoids probate without requiring a co-owner — though it comes with its own limits, including one specific to New York's co-op apartments.