SI NY01110.510 Shared Property Ownership (RTN 419, 09/2009)

A. New Jersey

1. Real property

a. Tenancies by the entirety created on or after April 4, 1988.

New Jersey recognizes tenancy by the entirety for real property conveyed to couples in marriage or a civil union unless there is documentation that another form of ownership exists.

For a tenancy by the entirety created after 1949, once the legal relationship between the couple is judicially altered through divorce, annulment, or legal separation, the tenancy by the entirety converts to a tenancy in common. A tenancy by the entirety also ends with the death of one partner with the survivor having full rights in the entire property.

A partner's interest in the property held in tenancy by the entirety may only be sold, severed, or otherwise affected with the written consent of both parties. Where tenancy by the entirety converts to tenancy in common, one party may sell his or her share in the property without the consent of the other. Where the individuals are joint tenants or tenants in common, assume the individual has the right to sell his interest in the property in the absence of other legal restrictions.

b. Tenancies by the entirety created before April 4, 1988

For tenancies by the entirety created before April 4, 1988, submit for a legal opinion pursuant to the procedures outlined in GN 01010.815.

2. Personal property

a. Tenancies by the entirety created on or after April 4, 1988

New Jersey has recognized tenancy by the entirety for personal property since April 4, 1988.

b. Tenancies by the entirety created before April 4, 1988

For questions relating to personal property held by married couples before April 4, 1988, submit for a legal opinion pursuant to the procedures outlined in GN 01010.815.

B. New York

1. Real property

New York recognizes tenancy by the entirety for real property conveyed to husband and wife, unless there is documentation that another form of ownership exists. In addition, after January 1, 1996, a disposition of shares of stock of a cooperative apartment corporation allocated to an apartment together with the proprietary lease to a husband and wife creates a tenancy by the entirety unless there is documentation of another form of ownership.

If the legal relationship between husband and wife is judicially altered through divorce, annulment, or legal separation, the tenancy by the entirety converts to a tenancy in common. Where, however, the husband and wife separate as a result of their own agreement without the aid of a judicial decree, they continue to own the property as tenants by the entirety. Tenancy by the entirety also ends with the death of one spouse with the survivor having full rights in the entire property.

Property held as tenants by the entirety may only be sold with the consent of both parties. Where individuals are joint tenants or tenants in common, assume the individual has the right to sell his/her interest in the property in the absence of other legal restrictions.

Although a spouse cannot sell his/her share of property held as tenants by the entirety, he/she is permitted to sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other. If the spouse who sells his or her interest in the property predeceases the spouse whose interest in the property has been retained, the buyer is left with no interest in the property at all. Conversely, if the spouse who retained his/her interest in the property dies first, then the buyer acquires full rights to the property unencumbered by the living spouse's former interest, i.e., the buyer owns the property outright.

2. Personal property

With the exception of shares of stock in a cooperative apartment (discussed in SI NY01110.510B.1), New York does not recognize tenancy by the entirety for personal property. Therefore assume, absent evidence to the contrary, that each owns an equal share of the property and is free to sell his/her interest.

C. Puerto Rico

In Puerto Rico, upon marriage, a couple enters into a legal relationship called a conjugal partnership. In the absence of any pre-nuptial agreement, the conjugal partnership determines the rights of ownership for property acquired by the couple after marriage.

1. Conjugal partnership

  1. The conjugal partnership exists while the marriage is in effect:

    It can only be dissolved by judicial separation or by dissolution of the marriage by death, legal divorce, or nullity.

  2. The conjugal partnership owns:

    1. Property acquired during the marriage at the expense of the partnership property, whether the acquisition is made for the partnership or for one of the spouses only;

    2. Property obtained by the industry, salaries, or work of the spouses or either of them;

    3. The fruits, income or interest collected or accrued during the marriage, coming from the partnership property, or from that which belongs to either one of the spouses.

    4. Buildings constructed during the marriage on land belonging to one of the spouses, but the value of the land is paid to the spouse owning it.

  3. The conjugal partnership does not own:

    1. Property owned by one of the spouses prior to marriage;

    2. Property inherited or received as a gift by one of the spouses during marriage: or

    3. Property acquired by one of the spouses through exchange of property or money belonging exclusively to that spouse.

    Such property belongs exclusively to that individual. This form of ownership or acquisition would have to be proven as it is assumed that all property belongs to the conjugal partnership (see SI NY01110.510C.5).

2. Treatment of property belonging to conjugal partnership while marriage still exists

  1. Property purchased with assets of the conjugal partnership belongs to the partnership unless it is proven to belong exclusively to the husband or the wife. It is assumed that property belongs to the conjugal partnership unless proven otherwise.

  2. Neither of the spouses may donate, sell, or bind for a consideration the personal or real property of the conjugal partnership's community property without the written consent of the other spouse.

3. Treatment of property after divorce

Property belonging to the conjugal partnership is divided equally.

4. Treatment of property owned by conjugal partnership upon death of spouse

  1. Spouse dies without a will

    Refer to the laws of intestacy in SI NY01110.515 if the spouse dies without a will.

  2. Spouse dies with a will

    Each spouse may dispose of his or her half of the conjugal partnership by will, except that certain portions of the spouse's property are reserved for his descendants (or other relatives if there are no descendants) and/or his spouse.

5. Proofs

If the individual disputes that the property was part of the conjugal partnership, obtain the deed, the will, property valuation (if available) and any other documentation the individual may have and submit for a legal opinion pursuant to the procedures outlined in GN 01010.815.

D. Virgin Islands

Real Property

1. Tenancies by the entirety created on or after September 1, 1957

The Virgin Islands recognizes tenancy by the entirety for real property conveyed to husband and wife, unless there is documentation that another form of ownership exists. Upon legal divorce or annulment, the tenancy by the entirety no longer exists, and the former spouses become tenants in common. Tenancy by the entirety also ends with the death of one spouse with the survivor having full rights in the entire property

The property held in tenancy by the entirety may only be sold with the consent of both parties. Where tenancy by the entirety converts to tenancy in common, one party may sell his or her share in the property without the consent of the other. Where the individuals are joint tenants or tenants in common, assume the individual has the right to sell his interest in the property in the absence of other legal restrictions.

2. Tenancies by the entirety created before September 1, 1957

For tenancies by the entirety created before September 1, 1957, submit for a legal opinion pursuant to the procedures outlined in GN 01010.815.


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SI NY01110.510 - Shared Property Ownership (RTN 419, 09/2009) - 09/29/2009
Batch run: 09/29/2009
Rev:09/29/2009