Life became a little easier for gay spouses buying co-ops in the wake of the recently passed Marriage Equality Act legalizing gay marriage in New York: No longer must they remember to specify on their co-op stock certificate that they own the apartment as tenants in common with a right of survivorship.
Instead, explains Manhattan real estate lawyer Dean Roberts of Norris, McLaughlin & Marcus, gay spouses--like heterosexual spouses--are automatically deemed to be buying as 'tenants in the entirety.' That means that if one dies, the apartment automatically transfers to the survivor, safely out of the reach of, say, the homophobic relatives in Idaho.
Gay unmarried couples (or unmarried couples of any sexual orientation, for that matter) cannot rest quite so easy if they neglected to add the magic words "with a right of survivorship" to the words "tenants in common." They remain plain old tenants-in-common, says Roberts, even if they eventually tie the knot.
"Should the deceased partner not make a clear bequest of the apartment to his or her partner...it gets a lot messier for a variety of reasons," notes Roberts, in a recent chat with BrickUnderground after we spotted his recent column on survivorship and same-sex marriage on HabitatMag.com.
Fortunately, there's a fairly straightforward solution: If you own your apartment outright (that is, without a mortgage), simply bring your stock certificate to your managing agent to add the 'right of survivorship' language.
If you've got a mortgage, the process may cause a few more headaches, as you'll have to get your bank to produce the stock certificates, which are as often as not missing these days. In that case, says Roberts, you'll need to get an affidavit from someone at the bank who is deemed to have control of the certificates.