My Boyfriend Died and His Brother Is Trying to Take the House: An Unmarried Partner's Rights in New York

Written by Albert Goodwin, Esq., an attorney admitted in New York who practices estate administration and estate litigation in New York City. Last reviewed: 2025. This page is general information about New York law and is not legal advice for your situation.

Your boyfriend died. You lived with him in the house. Now his brother says the house is his and wants you out. Who is right depends on three things: how the deed reads, whether there is a will, and what you can prove about any agreement you had with your boyfriend. This page walks through each of those questions under New York law, explains how an eviction against you would actually work, and sets out what to do in the first thirty days.

The Short Answer

• If the deed names you and your boyfriend as joint tenants with right of survivorship, the house is yours. The brother has no claim.
• If the deed names you both without survivorship language, you are a tenant in common. You keep your share and the estate takes his.
• If the deed is in his name alone, the house passes under his will or, with no will, to his closest relatives under EPTL 4-1.1. You are not on that list. Your rights, if any, come from a contract, a constructive trust, or a claim against the estate.
• Even in the worst case, the brother cannot change the locks or put you out himself. He needs a court order, and in most cases he needs letters of administration first.

The Hard Truth About Unmarried Partners in New York

New York gives almost no automatic protection to a romantic partner who was not married to the person who died. You are not a spouse for purposes of intestacy. You are not a distributee under EPTL 4-1.1. You have no elective share under EPTL 5-1.1-A. You have no automatic right to the home, the furniture, the car, or any other asset held in his sole name.

The length of the relationship does not change this. Living together for twenty years does not change it. Registering as domestic partners with the New York City Clerk does not change it, because the city registry confers no inheritance rights under state law. New York has not recognized common-law marriage since 1933, so you cannot become a spouse after the fact by proving you lived as one.

What you do have is the ability to enforce an actual agreement and to recover money or property that would be unjust for the estate to keep. Those claims are described below. Before you get there, you need to answer two factual questions.

Question One: How Was the House Titled?

Pull the deed. In the five boroughs other than Staten Island, deeds are recorded with the New York City Register and are searchable for free on ACRIS. Staten Island deeds are recorded with the Richmond County Clerk. Outside the city, go to the County Clerk of the county where the house sits. The deed controls, regardless of what anyone remembers being said.

Joint tenancy with right of survivorship: The deed names both of you and uses the words "joint tenants with right of survivorship" or similar language. When one joint tenant dies, the survivor owns the whole property by operation of law. Nothing passes through the estate. The brother, the will, and the intestacy statute are irrelevant to the house. You should record a certified copy of the death certificate, usually with a short affidavit, with the City Register or County Clerk so that the public record and any future title search show you as sole owner. Keep paying the mortgage, taxes, and insurance.

Tenancy in common: The deed names both of you but says nothing about survivorship, or says "tenants in common." Under EPTL 6-2.2, a conveyance to two or more people who are not married creates a tenancy in common unless the deed expressly creates a joint tenancy. Your share is yours. His share passes under his will or to his distributees. If the brother ends up owning the other half, you and he are co-owners, and either of you can bring a partition action under RPAPL Article 9 to force a sale or a buyout. See our pages on partition of real property and buying out an inherited residence.

Tenancy by the entirety: This form of ownership is available only to married couples. If an old deed to you and your boyfriend describes you as husband and wife, that mistake does not create a tenancy by the entirety. Courts generally treat such a deed as creating a joint tenancy if the survivorship intent is clear, and otherwise a tenancy in common. Get a lawyer to review the exact wording.

His name alone: The house is an estate asset. Go to question two.

Question Two: Did He Leave a Will?

If there is a will, it governs who gets the house. If the will leaves the house to you, you are a devisee and the executor must deliver it to you after probate, subject to the estate's debts. If the brother or anyone else is holding a will and refusing to produce it, a person interested in the will can petition the Surrogate's Court under SCPA 1401 to compel its production.

If there is no will, the house passes by intestacy under EPTL 4-1.1(a). The order matters, because each class cuts off the ones below it:

1. A surviving spouse and children (issue): the spouse takes the first $50,000 plus half the balance; the children take the rest.
2. A surviving spouse and no children: the spouse takes everything.
3. Children and no spouse: the children take everything, by representation.
4. No spouse and no children: the parents take everything, even if only one parent survives.
5. No spouse, children, or parent: the decedent's brothers and sisters, and the children of any deceased sibling, take everything by representation.
6. None of the above: grandparents and their issue, split between the maternal and paternal sides.
7. None of the above: great-grandchildren of grandparents (first cousins once removed).

Two points follow from this list. First, if you and your boyfriend had children together, those children inherit the house, not the brother. The brother is not a distributee at all. As the children's parent you can seek appointment as guardian of their property and, through that, control the administration. Second, if either of his parents is alive, the parent inherits before the brother. A brother only takes if there is no spouse, no child, and no living parent. Many brothers assert ownership without knowing this.

Note also that title to real property vests in the distributees at the moment of death, subject to the administrator's power under EPTL 11-1.1 to sell it to pay debts and administer the estate. The brother cannot sell the house to a third party until someone has letters of administration, and if he is not the sole distributee he cannot sell it alone even then.

Can His Brother Evict You?

If you are not on the deed and not named in a will, your legal status in the house after his death is that of a licensee. You lived there with the owner's permission. The permission ended when he died. A licensee has no lease and no tenancy, but a licensee still cannot be removed by self-help. RPAPL 768 makes it a crime in New York City to use force, change the locks, or shut off utilities to put out someone who has lived in a dwelling for thirty days or more. Outside the city, RPAPL 853 gives you a civil claim for treble damages for a forcible or unlawful eviction.

The lawful route is a summary holdover proceeding under RPAPL 713(7), which covers a licensee whose license has expired or been revoked. Here is how it works:

1. Ten-day notice to quit: RPAPL 713 requires a written ten-day notice to quit, served in the manner set out in RPAPL 735, before any petition can be filed. If the brother skipped the notice, served it improperly, or gave fewer than ten days, the proceeding is defective and can be dismissed.
2. Petition and return date: After the ten days run, the petitioner files a notice of petition and petition in the Civil Court, Housing Part, in New York City, or in the local district, city, town, or village court elsewhere. You get a return date and the right to file an answer.
3. Standing: This is where many of these cases stall. Only a person entitled to possession can maintain the proceeding under RPAPL 721. A brother without letters of administration must prove to a Housing Court judge that the decedent left no will, no spouse, no children, and no living parent, and that he is therefore a distributee in whom title vested. Housing Court is not set up to decide family status, and judges often dismiss or stay these cases until the Surrogate's Court has appointed a fiduciary. An administrator holding letters, or a temporary administrator appointed under SCPA 901 through 903, has clear standing. A temporary administrator can take possession of estate real property and maintain it while the larger dispute plays out, but ordinarily cannot sell it without court permission.
4. Your defenses: Defective notice, lack of standing, and a colorable claim of ownership. If you have a plausible constructive-trust or contract claim to the house, you can ask the Housing Court to dismiss or stay the holdover so that the title question can be decided in Supreme Court, which has jurisdiction over title and equitable claims. Housing Court cannot award you title.
5. Timeline: A contested holdover in New York City Housing Court typically takes several months from the first court date to a judgment, longer if there are adjournments, motion practice, or a stay. A judgment of possession is followed by a warrant of eviction, which a city marshal can execute only after serving a fourteen-day notice under RPAPL 749.
6. Stay of eviction: In New York City, RPAPL 753 allows the court to stay the warrant for up to one year if you show that you cannot find similar housing in the neighborhood after reasonable effort and that you will pay use and occupancy during the stay. This is discretionary and conditioned on payment, but it is a genuine option for a long-term resident.

While you remain, expect the estate to demand use and occupancy, meaning a fair rental value for the period after death. Keep records of what you pay.

Your Possible Claims to the House or Its Value

If you are not on the deed, you need a legal theory that gives you an interest in the house or a right to money from the estate. New York recognizes the following, each with limits you should understand before relying on it.

Express agreement

In Morone v. Morone, 50 N.Y.2d 481 (1980), the Court of Appeals held that an express agreement between unmarried partners is enforceable, as long as sexual relations are not the consideration for it. The same case refused to recognize a contract implied from the relationship itself. The court will not infer from the fact that you cooked, cleaned, raised children, or paid bills that he agreed to give you the house. You need an actual promise, and you need to prove it.

Two writing requirements get in the way of oral promises. A promise to leave you the house when he died is a contract to make a testamentary provision, and under EPTL 13-2.1(a)(2) it is unenforceable unless it is in a signed writing. A promise to convey an interest in real property during life must satisfy General Obligations Law 5-703. A signed cohabitation agreement, a letter, a text message that clearly states the promise, or a signed statement to a lender can satisfy these rules. A conversation on the porch cannot.

Constructive trust

Equity can impose a constructive trust on property even without a writing. Sharp v. Kosmalski, 40 N.Y.2d 119 (1976), sets out the four elements New York courts look for: a confidential or fiduciary relationship, a promise, a transfer made in reliance on the promise, and unjust enrichment. Long-term cohabitation generally satisfies the first element. The fight is over the second and third. You must show that you gave something, such as money toward the down payment, mortgage payments, or paying for a renovation, because of an understanding that the house was partly yours. Courts have granted constructive trusts to unmarried partners on these facts and have denied them where the contributions looked like ordinary shared living expenses.

The limitations period is six years under CPLR 213(1), measured from the wrongful act, which in this setting is usually the death or the estate's refusal to honor the promise. Do not let a holdover drag on for years without filing. The claim belongs in Supreme Court, or in Surrogate's Court once an estate proceeding is open, because Surrogate's Court has jurisdiction over disputes about what belongs to the estate.

Unjust enrichment and money claims against the estate

If you cannot prove a promise strong enough for a constructive trust, you may still recover the money you put into the house as a claim against the estate. Present the claim in writing to the administrator under SCPA 1803. If the fiduciary rejects it, you can have it tried in the Surrogate's Court accounting proceeding or sue on it, subject to the deadlines in SCPA 1810. A money claim does not keep you in the house, but it reduces what the brother walks away with.

The Dead Man's Statute

One rule shapes every one of these claims. CPLR 4519 bars a party with an interest in the outcome from testifying against the estate about a personal transaction or conversation with the decedent. In plain terms, you generally cannot take the stand and say "he told me the house was ours." You need bank records, cancelled checks, emails, texts, the contractor's invoice you paid, and witnesses who heard him say it. Start collecting those now.

What Happens to the Mortgage

Most mortgages contain a due-on-sale clause. The federal Garn-St Germain Act, 12 U.S.C. 1701j-3(d), bars the lender from enforcing that clause on certain transfers at death. The exceptions that matter here are a transfer by operation of law on the death of a joint tenant and a transfer to a relative resulting from the borrower's death. If you were a joint tenant, the lender cannot call the loan because he died; you step into the loan as a successor in interest, and the federal mortgage servicing rules in 12 C.F.R. Part 1024 require the servicer to communicate with you and consider you for loss mitigation once you confirm your status. If you were not on the deed and not a relative, the lender has no obligation to let you assume the loan, though many will negotiate. If no one pays, the lender can foreclose regardless of the family dispute. Whoever expects to keep the house should keep the mortgage current and keep proof of every payment.

Can You Buy the House From the Estate?

Yes, and this is often the practical resolution. Once letters issue, the administrator has power under EPTL 11-1.1(b)(5) to sell estate real property, and nothing prevents a sale to the decedent's partner at a fair price. If the brother is the sole distributee, he can sell you his interest directly. If you are a tenant in common with the estate, a negotiated buyout avoids a partition action and the costs of a forced sale. Your constructive trust or contribution claim becomes a bargaining chip: an estate facing a credible claim will often credit it against the purchase price rather than litigate.

Three Fact Patterns

These are hypotheticals, not case results, and the outcome in any actual matter depends on the evidence.

Partner on the deed as a joint tenant with right of survivorship: A couple bought a two-family house in Queens in both names as joint tenants with right of survivorship. He died without a will. His brother demanded the house as the "only family." Likely outcome: the surviving partner owns the house outright. She records the death certificate, continues the mortgage as a successor in interest, and the brother has no claim to the house, though he may be a distributee of other assets in the estate.

Partner paid half the mortgage for ten years but is not on the deed: The house was in his name alone. She can prove, with bank statements, that she paid half of every mortgage payment and funded a new roof. There is no writing about ownership. His parents are deceased; his brother is the sole distributee. Likely outcome: the brother can bring a holdover after obtaining letters, but she has a colorable constructive trust claim under Sharp v. Kosmalski that may justify a stay. Her realistic result is either an equitable interest in the house or a money recovery for her contributions, and the case usually settles with a buyout in one direction or the other.

Partner with a signed cohabitation agreement: The couple signed an agreement, prepared by a lawyer, stating that if either died the survivor could remain in the house for life and that the survivor would receive half the net equity on any sale. He died without a will. Likely outcome: the agreement is an express contract enforceable under Morone, and the writing satisfies EPTL 13-2.1. The brother takes his intestate share subject to her contractual rights, and she can enforce the agreement against the estate.

What to Do in the First Thirty Days

1. Get the deed from ACRIS or the County Clerk and read the ownership language.
2. Order several certified copies of the death certificate.
3. Search for a will: his papers, his lawyer, his safe deposit box, and the Surrogate's Court of his county, where wills can be filed for safekeeping.
4. Collect every document showing money you put into the house: bank statements, cancelled checks, contractor invoices, insurance payments, tax bills.
5. Collect every writing in which he described the house as yours or promised it to you: texts, emails, cards, loan applications, a cohabitation agreement.
6. List the people who heard him make those statements.
7. Keep paying the mortgage, taxes, and insurance if you can, and keep the receipts. If you cannot, tell the lender in writing that the borrower has died.
8. Do not move out. Leaving can end any argument that you are in possession and weakens a stay request later.
9. Do not sign anything the family gives you, including a "temporary" agreement to leave or a release.
10. Write down each demand or threat the brother makes, with the date. Save voicemails and texts.
11. Check whether an administration proceeding has been filed in the Surrogate's Court of the county where he lived, and consider filing your own petition if you have grounds, for example as the parent of his minor children. See our pages on estate administration without a will and letters of administration.
12. Consult an attorney before the ten-day notice to quit arrives, not after.

What the Brother Has to Prove

His claim is only as good as its legal basis. To take the house he must show one of the following:

• A probated will that leaves the house to him. Until the will is admitted to probate, it gives him nothing. If you have grounds, you can object; see contesting a will in New York.
• Intestacy with no spouse, no children, and no living parent of the decedent, making siblings the distributees under EPTL 4-1.1(a)(5). If he has other siblings, or if a deceased sibling left children, he shares with them.
• Letters of administration, which under SCPA 1001 go first to a spouse, then children, then grandchildren, then parents, and only then to siblings. If someone with priority exists, he must get their consent or renunciation.

If none of these applies, he has no standing to evict you or to sell, and his demands can be refused in writing. If one of them does apply, your task shifts to asserting your own claims and negotiating from a position of knowledge rather than fear.

Frequently Asked Questions

Can his family evict me right away?

No. New York prohibits self-help eviction of someone who has lived in a dwelling for thirty days or more. The family must serve a ten-day notice to quit under RPAPL 713(7), file a holdover proceeding, win a judgment, and have a marshal or sheriff execute a warrant after a fourteen-day notice. In practice they usually need letters of administration before a court will hear the case.

How long can I stay in the house?

There is no fixed period. From the first notice, a contested New York City holdover commonly runs several months, and a court can stay the warrant for up to a year under RPAPL 753 if you cannot find comparable housing and you pay use and occupancy. A pending ownership claim in Supreme Court can extend the timeline further. Staying will usually cost you fair rental value for the period.

Do I have any rights if I am not on the deed?

Not automatic ones. You can enforce a written promise under Morone v. Morone, seek a constructive trust under Sharp v. Kosmalski if you contributed to the property in reliance on an understanding of ownership, and file a claim against the estate under SCPA 1803 for money you put in. Each depends on documents and witnesses, because CPLR 4519 limits your own testimony about what he said.

We had children together. Does the brother still inherit?

No. Under EPTL 4-1.1(a)(3), children inherit everything when there is no spouse. Siblings take nothing. You can petition to be appointed guardian of the children's property and seek letters of administration on their behalf.

Does registering as domestic partners in New York City change anything?

Not for inheritance. The city registry affects certain benefits and housing succession rights in rent-regulated apartments, but it does not make you a spouse or a distributee under state law.

Talk to an Estate Litigation Attorney

The first weeks after a partner's death decide a lot: whether the record of your contributions survives, whether you keep possession, and whether the estate opens with or without your participation. The Law Offices of Albert Goodwin handles estate administration, Surrogate's Court litigation, and disputes over inherited real property in New York City and Long Island. We can review the deed, assess the brother's standing, and tell you which of the claims above the evidence supports. Call 212-233-1233 or email [email protected]. Offices in Manhattan, Brooklyn, and Queens.