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Time for Initiating Action

The title to property is vested in the heirs immediately upon the decedent’s death.  A partition action is brought to divide a property in individual shares among the owners.  The right to partition is an absolute right restricted by law, written waiver, or a provision in a will. The right can be used at any time.  Courts always favor partition.  Probate, rights of parties to possess decedent’s property, and appointment of an administrator affects an action to partition to a certain extent.  Additionally, a judicial partition is subject to some legal principles like statutory limitations and laches.

In order to initiate a partition, all parties must have the right to possession[i].  Generally holders of an expectant estate cannot sue for partition.  However, with the consent of the holder of the reversion, a court can order the sale of joint property on the petition of an expectant estate.  However, until the right is fully vested, the sale proceeds are subject to the order of the court[ii].

Usually the probate of a will is not a condition precedent to a suit for partition.  However, in some states probate of will is considered as a prerequisite to initiate a suit for partition.  Court’s in such states do not approve of the practice of entering a decree for partition or sale before the estate is finally settled.  When a court orders a sale, the personal representatives must be brought into court.  The court must control the funds arising from the sale to protect the interests of creditors of the estate[iii].

Moreover, without proof of probate, a will itself, as a title to property, cannot be received in evidence.  A decree is the proper evidence of the probate of a will.  A will is put in evidence by showing that it is duly in the probate or other competent court within a state[iv].

Additionally, the appointment of an administrator is not a condition precedent for effecting a partition among heirs.  However, when a testator devises property to his/her children and wife and made legacies a charge upon the estate, the land cannot be partitioned until the settlement of the executor’s account[v].  In such circumstances, an administrator is essential to settle an executor’s account.

The right of partition is an incident of common ownership and is specifically authorized by statute.  Partition statutes contain no limitation on when the action can be taken.  An action for partition is an action for the recovery of real property.  Generally there is no limitation period for bringing a partition suit, as a cause of action for partition is a continuing one during the existence of co-tenancy[vi].

However, statute of limitation can operate in a partition suit when:

  • a tenant in common is excluded from possession;
  • a major issue is to be resolved before deciding partition;
  • the purpose of a partition is to resolve a dispute on title to a property;
  • the action is for contribution for improvements; and
  • the suit is to establish a right to a  share.


When the action is not commenced within the requisite time, all the above cases are subject to partition.

The doctrine of laches bars all types of reliefs when the laches makes it impossible for a court to do justice.  A partition suit is also subject to laches.  Delay defeats relief.  Whether a claim is barred by laches must be determined by the facts and circumstances in each case and according to  justice.  Laches in the legal sense is not mere delay.  The delay must work a disadvantage to another[vii].

In order to prove the affirmative defense of laches, a defendant must demonstrate that there has been an unreasonable delay in asserting the claim and that the defendant was materially prejudiced by that delay[viii].

[i] Huse v. Noffke, 271 N.W.2d 682, 684 (Iowa 1978).

[ii] Long v. Crum, 267 N.W.2d 407, 408-409 (Iowa 1978).

[iii] Ellis v. Dumond, 259 Ill. 483, 488 (Ill. 1913).

[iv] Ochoa v. Miller, 59 Tex. 460, 461 (Tex. 1883).

[v] Serena v. Moore, 69 N.J. Eq. 687 (Ch. 1905).

[vi] Marriage of Ryan, 2001 ML 2428 (Mont. Dist. Ct. 2001).

[vii] Preston v. Berry, 234 P.2d 417, 422 (Okla. 1951).

[viii] Clark v. Heirs of osborn, 1989 OK 145 (Okla. 1989).

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