Q&A: Right to Inherit

Right to Inherit

Q What are the laws in New York City regarding domestic partners who are technically the tenants of a co-op owner? My domestic partner and I have been living in my Jackson Heights co-op for over five-years. He contributes to our monthly maintenance fees, but I can’t add him to the stock certificate because we are unable to get legally married. If anything should happen to me, could he simply inherit the co-op or would he face difficulties because of our unrecognized legal status?

—Concerned Domestic Partner

A “In order to answer the questions presented, it would be necessary to know the relevant provisions of the cooperative’s proprietary lease governing transfers,” says attorney Abbey F.Goldstein, with the Manhattan-based firm, Goldstein & Greenlaw LLP. Typically, the lease provides that consent of the board is necessary for a transfer, except if the transfer is to a “spouse.” (Many leases also provide exceptions for additional family members such as adult siblings and parents.) Adding the name of an additional person who does not come within one of these exceptions would be considered a transfer of a partial interest requiring the approval just mentioned.

“Legal arguments have been and continue to be made that the term “spouse” should include “domestic partner” or other demonstrably committed same-sex partners. In this case, the arguments would be based upon Executive Law, section 296, and the New York City Administrative Code, Section 8-107 thereof. Both prohibit housing discrimination based on sexual orientation. While it is not now illegal for a proprietary lease to use the term “spouse” to describe a category of exceptions to the approval process, the argument is that to do so in the context of a gay couple would cause “a disparate impact” because it places them in a disadvantageous position relative to straight couples.

“As there is nothing preventing you and your domestic partner from residing together at the present time, and the only issue is whether you should be able to include him/her on the stock and lease of the cooperative without board approval, one must conclude that the present state of the law is that the cooperative would have the right to adhere to its position requiring consent.

“To answer the second part of your question—could your domestic partner inherit the right to continue residing in the apartment—the proprietary lease must again be consulted. It is common for a lease to provide that consent of the board to a transfer by an estate to a “spouse” is not needed, nor is consent typically required for a transfer to a financially responsible member of the lessee’s “ family.” As enunciated by the courts, the law has a far more liberal view of the term “family” when considering the rights of domestic partners. In the case of Braschi v. Stahl Associates Co., the court, in referencing the New York City Rent and Eviction Regulations, stated, “… we conclude that the term family … should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate …”

“So, if your domestic partner were left the apartment in your will, one would hope that he/she would have an excellent chance of prevailing in a claim to the right to continued occupancy, as well as ownership, as opposed to the cooperative’s requiring the estate to sell the apartment to an approved buyer. That issue is not only a matter of law but, to a certain extent, a policy issue for a board of directors.

“Many would argue, myself included, that whether marriage between gay couples is allowed or not, we should do away with all sex-specific distinctions when it comes to property rights. Whether a person’s name can be added to a stock certificate should have nothing to do with the respective genders of the couples, but only the nature of their relationship.”

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