Volume 5 - Opinions of Counsel SBEA No. 40
Aged exemption (ownership requirement) (surviving spouse less than 65 years of age - effect of L. 1975, c.664) - Real Property Tax Law, § 467:
The effect of chapter 664 of the Laws of 1975 is to allow the aged exemption (Real Property Tax Law, §467) on real property owned by a husband and wife, only one of whom is age sixty-five or older, to continue on the death of the older spouse, provided the surviving spouse is at least sixty-two years of age. Where the surviving spouse is less than sixty-two years of age, he may not receive the exemption until he attains the age of sixty-five and is otherwise qualified to receive it.
We have received an inquiry concerning chapter 664 of the Laws of 1975 which amends section 467 of the Real Property Tax Law, the so-called aged exemption statute. Pursuant to this amendment, under certain circumstances the exemption may be continued on property owned by a surviving spouse who is sixty-two years of age or over. The question is whether an individual who became a widow or widower at an earlier age would qualify upon attaining the age of sixty-two.
Section 467 of the Real Property Tax Law authorizes a partial exemption from taxation on the owner-occupied residence of certain elderly persons who meet the requirements contained therein. One of those requirements is that the real property must be owned by one or more persons each of whom is sixty-five years of age or over. Where, however, the property is jointly owned by husband and wife, the statute provides that only one of the spouse-owners must be sixty-five years of age or over to satisfy the age requirement. Thus, for example, where property is jointly owned by a husband age seventy and a wife age sixty, the exemption may be allowed notwithstanding the fact that the wife, a joint owner, is under sixty-five years of age. However, under prior law, in the event of the death of the older spouse, the surviving younger spouse would not be eligible for the exemption until such time as the age of sixty-five was attained (3 Op.Counsel SBEA No. 121).
The apparent intent of chapter 664 is to permit an otherwise qualified surviving spouse who is at least sixty-two years of age to continue to qualify for an exemption in subsequent years on property for which an exemption had been allowed prior to the death of the older spouse. Chapter 664, which becomes effective January 1, 1976 amends subdivision 1 of section 467 by adding thereto a new paragraph (b) which reads as follows:
(b) The real property tax exemption on real property owned by a husband and wife, one of whom is sixty-five years of age or over, once granted, shall not be rescinded by any municipal corporation solely because of the death of the older spouse so long as the surviving spouse is at least sixty-two years of age.
The amendatory language addresses itself to exempt real property jointly owned by a husband and wife, and expressly provides that such exemption shall not be rescinded solely because of the death of an older spouse so long as the survivor is at least sixty-two years of age. In our opinion this measure applies only in the situation where an exemption had been allowed on jointly held property, and prior to filing for the exemption in the next subsequent year, should the older spouse die, the surviving spouse must be at least sixty-two years of age or older to be eligible and have the exemption continue with respect to the same property on the first assessment roll prepared following the death of the older spouse. If the surviving spouse is less than sixty-two years of age, an exemption may not be allowed until such time as the survivor attains the age of sixty-five and is otherwise qualified.
November 12, 1975