Legal Question in Wills and Trusts in New York

It goes to the surviving spouse.

I say maybe, as it depends upon the language in the Deed. If the Deed reads H & W either as tenants by the entirety or joint tenants with right of survivorship, the survivor gets it all. However, if it says H & W as tenants in common, there may be a portion that goes to the children. This depends upon whether or not there is a Will also, and what the Will says. More information is needed for a complete answer.

Adding to what Walter writes, if the deed just says "John Doe and his wife", then it is tenants by the entirety and the surviving spouse receives the entire house.

Mike.

All of my colleagues are correct - If the deed states Husband and Wife, then it is a tenancy by the entirety and the surviving spouse receives the entire house, just as if the deed read Husband and Wife, Joint Tenants or Joint Tenants with Rights of Survivorship.

If the deed reads that Husband and Wife are Tenants in Common, then the decreased spouse's share is distributed EITHER according to a Will, or if there is no will, then by the New York State Intestacy statutes, which provide if a decedent is survived by a spouse and children, the first fifty thousand dollars of the estate goes to the surviving spouse, and the remainder is divided between the spouse (50%) and the children (50% to be divided amongst the children. If one of the children is deceased, then their share will be divided amongst their children).

Yet another reason to have an experienced attorney review your deeds and other documents as part of creating an estate plan, even if you choose not to have a will or trust. However, when you choose not to engage in estate planning, your surviving spouse and children will most likely have to go through probate, which can take up to 2 years in New York State and incur attorney's fees and court costs.