Last Update: 3/3/22
A partition is provided only for those who have joint interests such as joint tenants, tenants in common, or joint-heirs. Additionally, only those in possession, or having the right to immediate possession, are entitled to partition. Thus, remaindermen with a life estate outstanding are not joint tenants, tenants in common, or joint-heirs. That’s because they have no unity of possession or any right of immediate possession by reason of an outstanding life estate.
Also, generally speaking, anyone with a joint interest has the right to bring a partition action without any concern about his or her reasons for seeking partition. However, what about a person who has a life estate interest?
Can A Surviving Spouse Seek Partition If She Has A Life Estate?
That was the question in Garcia-Tunon v. Garcia-Tunon, 472 So. 2d 1378 (Fla. Dist. Ct. App. 2d Dist. 1985). In Garcia-Tunon, Mr. Jose N. Garcia-Tunon, died on February 5, 1979, leaving behind a grieving widow, as well as several adult children from a prior marriage.
Unfortunately, Mr. Garcia-Tunon had not foreseen the difficulties that would arise after his passing and preempted them with some estate planning. As it was, he died without leaving behind a Last Will and Testament.
This left the probate court to deal with his estate under Florida’s intestacy law. Sometimes, because there are no real estate holdings or complex assets to divide among the heirs, an estate is simple to administer with the application of our intestacy statutes. This was not the case with Mr. Garcia-Tunon, who died as a landowner here in Florida.
Accordingly, Mrs. Garcia-Tunon was forced to file a lawsuit to deal with the real estate that her husband owned at the time of his death. This would empower the probate judge to rule on the ownership issues regarding the real estate.
Specifically, the widow filed a complaint that named her late husband’s children as defendants and formally requested that the land be partitioned.
Mrs. Garcia-Tunon alleged that when her husband died, she legally became his “surviving spouse” under the Florida Probate Code, and therefore became the legal owner of the property with a “life estate” interest.
(Generally speaking, a life estate gives the holder of the interest the right to occupy the real estate for the rest of his or her life. The remaining heirs (in this case, her stepchildren) also receive an interest in the property called a “vested remainder.”)
Florida Statute 64.031
In Florida, partitions are governed by Florida Statute 64.031, which states that the partition lawsuit can be filed “…by one or more of several joint tenants, tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided.” Meaning, Partition lawsuits resolve conflicts between those who share joint possession of the land.
The language of this law has remained unchanged since it was passed in 1941. When considering cases involving this law, Florida courts have narrowly construed how it is applied.
For example, back in 1947, the Florida Supreme Court found that one joint owner (remainderman) could not have a partition of an outstanding life estate in a lawsuit filed against the other remainderman, because this right was not specified in specific language in the statute. Weed v. Knox,157 Fla. 896, 27 So.2d 419 (Fla. 1946).
Does The Surviving Spouse’s Interest In The Property Allow Her To Seek Partition?
In this case, the widow lost her claim at the trial level, so she appealed. On appeal, the widow’s position was that the statute deals only with those who have joint interests and that she did not have shared ownership in the property. As a life tenant, she believed she had a tenancy in the entire property.
Her argument was based on the laws of other states, as well as scholarly sources, like 1 American Law of Property § 4.96 (1952), which provides:
Partition means a severance of interests which to some extent at least are concurrent. It refers to such types of co-ownerships as tenancies in common and joint tenancies. It is true that, if the land is conveyed to A for life, remainder to B in fee, A and B have interests in the same land, and in a sense may be said to be co-owners. But it is not the sort of co-ownership to which partition has been applied.
Unfortunately, the appellate court was not persuaded by her argument. They ruled that the law she cited from the other states (Georgia, Alabama and Rhode Island) did not parallel the wording of Florida Statute 64.031. From the court’s perspective, Florida law is clear:
In Florida, under the language of the Florida Partition Statute (Florida Statute 64.031), a partition action is not available to an owner of a life estate seeking to partition against remaindermen.
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