Partner of 17 years died suddenly. Will I be evicted from the home we shared?

Recently on our legal forum a user asked, “I lived with my partner in New York for seventeen years. She died suddenly. The house we were living in was part of an estate that was co-owned through a tenancy in common arrangement. I am wondering if I have any rights to the house or whether the ownership reverts back to the other co-owners, which were my partner’s sisters?”

Joint tenancy vs. Tenancy in Common

The first question you need to address is how the house is owned; specifically, whether the house is owned as a joint tenancy or a tenancy in common. You mentioned the house was owned through a tenancy in common. This is a very important point and needs to be clarified.

If the house was owned as a joint tenancy when one of the tenants dies the remaining owners will automatically receive the deceased owner’s interest in the property. If this is the type of ownership which had been established then the sisters would automatically receive the full portion of your partner’s share.

Now, on the other hand, if the house was shared through a tenancy in common arrangement, unlike joint tenancy, your partner would have had the legal right to leave the property to any beneficiary she chose, and the property would not automatically be given to her sisters. In fact, she could have chosen to leave you the property by specifying in whatever deed she used how you would be taking title.

How does California view a common law marriage?

Now to the second issue: common law marriage in New York. Although some states recognize common law marriage (Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97)), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968), many states, including New York, do not.

(Exceptions may exist if the marriage was valid under the laws of a state that allows common law marriage. Talk to a lawyer if you have questions regarding this exception).

Unfortunately, what this means for you is that if your partner did not have a valid will, you will have no claim to her assets after her death. You also will not be entitled to any of her assets or monies that would have been transferred through designations unless she has listed you as the beneficiary.

How will assets be transferred in New York without a will?

So let’s take a look at how your partner’s property is likely to be distributed in New York without a will.

Generally, if you were married to your wife and the two of you had no children, you would have inherited everything. If you and your wife had been married with children, you would have received a portion of the inheritance and your children would have received a portion.

Now, let’s discuss what will happen because you were not married and the common law marriage is not recognized in New York. You did not mention if your partner had any children, but let’s assume she did not. If your partner had parents and no children, her parents would inherit everything. If, however, your partner had no children and no parents, her siblings would inherit everything.

With this example we are back to where we started…her siblings inheriting the house in full, unless the house is specified as a tenancy in common and she specifically listed you on the deed as the owner if she died.

Bottom Line:

Real estate and marital laws are complicated. It’s important to talk to an estate planner and develop a will or trust which specifically dictates who will inherit your property prior to death. If you don’t, it’s easy to see what can happen. Family members are left battling it out, often with little regard to what the deceased’s wishes might have been.

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