Titling property as Joint Tenants with Right of Survivorship can be a simple yet effective method of estate planning in the proper circumstances. With this form of ownership, upon the death of a joint owner, his or her interest in the property passes automatically to the surviving joint owner or owners by operation of law. Where such survivorship rights are intended by the owners, their failure to include an express right of survivorship in the Deed or account registration while still living can lead to years of litigation and significant attorney fees after an owner’s death.

In a recent case, a New York appellate court held that the decedent’s contractual promise to leave his 50% interest in a condominium to his partner by right of survivorship was enforceable, even though a new Deed to the condo adding the survivorship right had not been made before the decedent’s death. Matter of Hart, 149 N.Y.S.3d 179 (App. Div. 2021).

In a 2014 property agreement made shortly before the decedent’s death, the partners stated their intent that the condo pass to the survivor of them by Will or other testamentary instrument. At that time, the Deed to the condo stated that the partners were joint owners as tenants in common, without right of survivorship.

The saving grace for the enforcement of the 2014 Agreement was the decedent’s Revocable Trust Agreement, to which his Will poured over. The Trust Agreement incorporated the 2014 Agreement by reference and directed compliance with its terms, which the Court held to be sufficient to make the 2014 Agreement enforceable.

The parties could have avoided the need for this litigation if they had changed the Deed at the same time as the 2014 Agreement to create the desired right of survivorship. While the Trust Agreement provision ultimately carried the day, the partner was forced to take the matter to court, with both a trial and an appeal, to obtain the intended right of survivorship.