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Volume 3 - Opinions of Counsel SBEA No. 121

Opinions of Counsel index

Aged exemption (ownership requirement) (husband and wife) - Real Property Tax Law, § 67:

For purposes of this exemption statute, when the property is jointly owned by a husband and wife, only one of the spouse-owners must be sixty-five years of age or over. However, should the spouse over sixty-five die leaving a spouse who has not yet attained such age, the exemption will not be allowed to the survivor.

We have received an inquiry regarding the ownership requirement of the so-called aged exemption (Real Property Tax Law, § 467). A husband, over sixty-five years of age, passed away leaving a widow who will soon be sixty-three. Before the husband’s death, the property owned by this couple was eligible for the aged exemption. The question is whether the property is still eligible for this exemption if the widow is within the terms of the “survivors clause”, or if the property remains in the husband’s estate.

In regard to who is eligible for this exemption, subdivision 1 of section 467 provides that:

Real property owned by one or more persons, each of whom is sixty-five years of age or over or real property owned by husband and wife, one of whom is sixty-five years of age or over, shall be exempt from taxation . . . to the extent of fifty per centum of the assessed valuation thereof . . . (emphasis supplied).

Pursuant to the above provision, in order to be entitled to the exemption provided by section 467, real property must be owned by one or more persons, each of whom is sixty-five years of age or over. When the property is jointly owned by a husband and wife, only one of the spouse-owners must be sixty-five years of age or over. Should the spouse over sixty-five years of age die, vesting sole title to the property in the surviving spouse, who has not yet attained such age, the exemption could not be allowed because the survivor does not meet the age requirement of the statute.

By the term “survivors clause” we assume reference is being made to the 1967 amendment (L.1967, c.752) to subdivision 3(b) of section 467 which provides that where title to property has been vested solely in the surviving spouse by will or operation of law, the period of ownership of the deceased spouse shall be counted for purposes of the length of ownership requirement of the surviving spouse. This amendment did not, however, change the age requirement, and therefore on the facts presented here, the property would not be eligible for the exemption, since the surviving widow is not yet sixty-five, even if her time of ownership combined with that of her late husband met the length of ownership requirement.

The apparent intent of the Legislature was to benefit persons sixty-five years of age or over with limited incomes who owned and occupied their homes for at least five consecutive years prior to making application for exemption. Tax exemption statutes are strictly construed against the taxpayer. To allow an exemption to a surviving spouse who is under sixty-five years of age would be contrary to legislative intent and the express language of the statute.

The second question relates to the effect of the disposition of real property at the death of an owner. The rule of law in New York State is that the will itself and not the probate vests title to real property in the devisee. “Such title vests at the instant of the testator’s death in the devisee named in the will. Waxon Realty Corp. v. Rothchild 255 N. Y. 332, 336, 174 N. E. 700, 701; Corley v. McElmeel, 149 N. Y. 228, 43 N. E. 628, 630.” (Application of American Museum of Natural History, 17 Misc.2d 855, 187 N.Y.S. 2d. 390). Immediate vesting in heirs of title to real property is also the case where the owner dies intestate (see, In re Fry’s Estate, 28 Misc.2d 949, 218 N.Y.S.2d 755). Therefore whether this widow’s husband died testate or intestate, title to his real property vests immediately in someone and there is no provision for the realty “remaining in his estate.”

April 18, 1974

NOTE: Chapter 1004 of the Laws of 1974, effective January 1, 1975, reduced the length of ownership requirement from 60 to 24 consecutive months.

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