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Can A Life Tenant Deed An Interest To A Remainderman Allowing For A Partition Of The Real Estate?

According to Florida case law as of the date of this article, yes, a partition is provided only for those who have joint interests such as joint tenants, tenants in common, or joint heirs against their co-heirs.

See: Barden v. Pappas, 532 So.2d 707 (Fla. 5th DCA 1988)

Widow And Stepson Seek To Partition A Remainderman’s Interest

When Louis Pappas passed away, he left behind his grieving widow Marguerite as well as two adult children from a prior marriage, Lewis Payton and Mary Ellen Barden.

The widow, as surviving spouse under the Florida Probate Code, filed a partition lawsuit over the homestead property left by her deceased husband.  She alleged she had a life estate in the property, with Lewis and Mary Ellen holding undivided one-half interests in the remainder.

Lewis filed an answer, admitted the allegations of the petition and concurred in the relief sought by the widow.  His sister did not agree with him.

Mary Ellen filed an answer in the lawsuit which raised a number of affirmative defenses.  She raised several defenses, including that partition is unavailable to an owner of a life estate against the owners of the remainder interest.

The widow amended her complaint.  She presented evidence (deeds) that she had conveyed a one-half interest in her life estate to Lewis.  At the same time, Lewis had conveyed to her a one-half interest in his undivided remainder estate.

The petition was granted.  Mary Ellen appealed.

Life Tenant Deeds An Interest To One Remainderman

The Widow contends that as a result of the exchange of deeds, she and her stepson Lewis are tenants in common within the meaning of the Florida Partition Statute.

Mary Ellen countered that the stepson and stepmother were not tenants in common because they did not hold several and distinct titles to the land.  They held their interest only so long as the widow lived because she held a life estate.

The court held that Lewis’ undivided interest in the life estate gave him the essential element needed for a tenancy in common, viz: unity of present possession with Pappas. They are thus tenants in common of Pappas’ life estate.

However, the interests in the remainder are successive to the interests in the life estate, and as such, the life tenant(s) may not partition the remainder.   Partition means a severance of interests which to some extent at least are concurrent. 

The appellate court, in explanation, quoted Professor Simes:

Interests which are merely successive, and not concurrent, are not partitionable. Suppose land has been conveyed “to A for life, remainder to B and his heirs.  Would either A or B succeed in a partition proceeding in which a partition sale is sought? According to the statutes in nearly all jurisdictions, and according to equity doctrines, no partition sale would be ordered.

The reason is that there are no interests held by co-tenants. The holders of successive interests, such as a life estate in severalty and a remainder in severalty, are not co-tenants. There is no possibility of them ever being entitled concurrently to possession of the same piece of land….

Simes, The Law of Future Interests, § 44 (Hornbook Series, 2d Ed., 1966).



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