Pride & Property Can a Board Interfere With a Same-Sex Spouse’s Survivorship Rights?

Pride & Property

Q: I am in a same-sex marriage, and bought a co-op with my partner before marriage equality became the law of the land. I recently reached out to our board about adding my partner’s name to the stock certificate. It’s a very gay-friendly board, and there was no resistance whatsoever from them—but do I need a lawyer to represent my interests? My main question is, how should the stock certificate be reissued—Joint Tenancy with Rights of Survivorship, or Tenancy by Entirety? Is getting my partner’s name on the proprietary lease enough to guarantee that they would not have a problem with occupancy upon my death? That’s the major concern—not sale of the apartment. We want to make sure that occupancy is guaranteed, so that we have a document that guarantees that no less-friendly future board could try to evict him.

—Protecting My Partner

A: “You do not need a lawyer to ensure your right, and the right of your spouse, to own, occupy, and enjoy your apartment,” says Slava Hazin, partner at New York City law firm Warshaw Burstein. “The type of ownership that you elect is generally reflected on the share certificate. Married couples usually elect to take title as ‘tenants by the entireties,’ which has certain advantages (especially against your creditors). You can also choose to take title as ‘joint tenants, with right of survivorship’ or ‘tenants in common’ depending on your situation, and for that you should consult an attorney. In addition to the shares that you and your spouse will be issued in the cooperative corporation, the cooperative will also issue to you and your spouse a proprietary lease. Your rights and obligations with respect to the apartment are set forth in that proprietary lease. A change in the board cannot in any way alter or diminish your rights, unless the lease is amended in accordance with the proprietary lease (usually by a vote of the board and at least 2/3 of the tenant-shareholders). Enjoy your apartment!”

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