Legal Question in Wills and Trusts in New York

It depends upon the language in the Deed. Traditionally, real property owned between husbands and wifes is considered to be owned as Tenants By the Entirety, which is the real estate form of joint ownership with right of survivorship. This means that when the first spouse dies, the survivor owns the entirety, and this cannot be changed by a Will directing anything to the contrary. However, if the Deed language were changed to Equal Tenants in Common, which is a joint ownership, but entitling the first to die to distribute his/her one-half ownership by Will, the effect would be to allow what you propose. There are many reasons why ownership between spouses should be either way (Entirety or in Common) and these should all be explored with an estate planning, tax and real estate attorney before a decision is made, either way. There are also other possible ways to register the ownership of the property that may accomplish the result you are seeking. This is a response to an Internet question and the reply is not intended to be legal advice or as creating an attorney-client relationship.