Partition Can Be the Solution For Florida Heirs
Florida’s homestead laws provide a number of ways in which heirs can end up as unwilling co-owners of real estate. A common way is if a parent dies with a primary residence but without a will, and has several adult children. Each of those children will end up as an equal co-owner of the property.
When one heir wants to live in the property and the other wants to sell, Florida law provides a fast and easy remedy to force a sale of the property - the partition action.
Although the name “partition” implies a split of the property, most residential real estate in Florida cannot be split, because of homeowner association rules and/or local land use ordinances limiting how small a lot can be, to the obvious impracticalities of dividing all but the most palatial of condominiums into multiple units. If the property cannot be subdivided, the property is sold under court order, with the proceeds divided among the heirs.
A partition action has no defenses, other than that the person filing the partition action previously agreed not to partition the property. Even property that was the deceased’s homestead property is subject to partition.
The Court will either order that the property be sold at a public sale, i.e. an auction, or through a private sale. Typically, in a private sale, the Court will appoint a special master (usually an attorney or real estate broker) to list and sell the property similar to any other private sale of real estate.
Partition actions are not available in life estate / remainder situations. When a married deceased person passes away with a primary residence and either has no will or leaves the property to children instead of the spouse, the Florida Constitution and Florida Statutes dictate that the surviving spouse receive a life estate in the property, and the surviving children each receive an equal remainder interest in the property. Neither the surviving spouse nor the children can partition the property with respect to the other. Accordingly, if the surviving spouse wants to sell the property, he or she can only do so as a result of a negotiated settlement with the children.
Spouses who need to downsize in such a situation have no legal recourse presently under Florida law. Although practitioners in the area have been aware of this problem for some time, the Florida legislature has not yet provided a mechanism to allow the surviving spouse to sell the property.
