A partition action or proceeding is an action to divide multiple legal interests in – usually – real property. A partition action is usually appropriate where: a decedent owned an undivided interest in commonly owned property, or; the decedent left undivided interests in property to more than one heir or beneficiary, and they do not want to co-own the property. In the former instance, the surviving co-owners' interests are not part of the decedent's probate estate, and therefore need a legal determination of ownership. These actions take place in regular civil court, as opposed to probate court. The latter occurs in the context of the probate proceeding itself, and therefore avoids having to file an independent action.
It’s important to note that partition actions are not necessary where the property is held in joint tenancy, community property with right of survivorship, or otherwise passes by spousal petition (this is discussed in our blog, here).
Where the partition action is commenced in civil court in order to sever the decedent’s interest, the personal representative of the decedent’s estate may bring the action, or may otherwise represent the decedent in a partition action brought by one of the other co-tenants. The representative may do so without prior authority by the probate court. Cotenants are entitled to partition as a matter of right, even if it would cause financial injury to the other cotenants. The civil court has broad authority within the partition action. It can to issue temporary restraining orders, injunctions, protect the property or the title, and restrain unlawful interference with the partition. The court can also order “allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”
A partition action between beneficiaries occurring within the probate proceedings may be brought either by the representative or by one of the beneficiaries. The order for partition does not, itself, constitute an order for distribution. Instead, it’s merely a confirmation of the beneficiaries’ legal property interests, subject to other interests, such as payment of estate costs. The partition action must be brought before the final order for distribution.