Q: What happens if a joint tenant sues for partition and then dies?
A: Action ends, survivorship trumps…right?
Easy property questions, simply put and comfortable to ask, suggest easy answers. But particularly in law, and especially when tested against particular facts at a particular time and place, easy questions are also rare. Real property rules feel timeless and immutable—two qualities that are believed to encourage robust markets, avoid litigation, and offer clarity, efficiency, and speed. But context can change everything, and sometimes even the easiest questions become difficult to answer.
What effect does partition have on survivorship? And what effect does survivorship have on litigation? Liam Cronan collects and presents historical evidence to reveal that courts have been too quick to replace research and reason with “survivor takes all.” Through a recent case, Cronan shows that much more may and should turn on the specifics of extant statutes, including even colonial-era ones based upon some long-repealed 17th-century English law of the land.
Dismissed at Death ably recounts the origins of the concurrent estate known as the joint tenancy, a story long and often told. Where A and B hold such an interest, the death of the first effects immediate and full ownership by the second via the “survivorship right,” a baked-in result unchanged by any succession plans of the first to die. At common law, it was presumed by default in deeds granting ownership to more than one person where the four unities of time, title, interest and possession existed. Modern law demands express language to override the current statutory presumption in favor of the tenancy in common. But it has always been easy to know a joint tenancy when you saw one: it was either presumed or so unambiguously created as to be unmistakable.
The relative clarity of creation is one thing. Destruction is another. Again, Cronan shares the familiar methods, most basically via conveyance from one joint tenant to another within or beyond the joint tenancy unit. Such severance would destroy the survivorship right by breaking the unities of time and title for the grantee of the interest conveyed.
Partition, whereby co-owners convert their proportionate ownership of an undivided whole into either separate physical portions or divvied proceeds of sale, presents an arresting intersection. As Cronan recaps:
[If] a joint tenant files for partition but dies before it is complete, the right of survivorship and the right to partition inherently conflict. [The filer’s death] implies that their share of the property should pass to the other tenants [who survived], but the [filer’s filing for] partition implies that they wanted to terminate the right of survivorship…[such that] their share of the property should not pass to the other joint tenants.” (P. 236.)
How should a court respond? Here is where Cronan contributes most originally to the discussion. After noting the common “central premise,” i.e. that a joint tenant’s death will simultaneously cause the abatement of the partition action and therefore preserve the right of survivorship, Cronan traces the developmental interplay between statute and common law to reveal the undertheorized and often ahistorical view upon which it rests.
To summarize his research:
- All common law actions ended if a party died before the action was complete.
- Absent particularized legislation, a pending action for partition would be no different.
- Thus, a joint tenancy will survive the mere filing of a partition action with the filing tenant’s interest remaining unsevered from the survivors’ whole.
- England enacted contrary legislation in the Partition Act of 1696: no partition action shall be abated/dismissed by reason of the death of any joint tenant.
- “Deeply influenced” by the Act, some colonies and states followed suit.
- While England later abolished the Partition Act and states are free to do so as well, statutes remain on the books (albeit usually overlooked or misconstrued).
- As such, many partition actions should survive the death of the filing party where the statute speaks clearly enough and is properly, contextually read.
- This would effectively continue partition through the filer’s estate and correlatively suspend the right of survivorship during pendency of the action.
- Possibly resulting in ultimate severance and protecting tenants’ heirs’ longstanding statutory rights to continue a partition suit.
Cronan’s dive into Bracton- and Coke-era scholarship is valuable in itself, as are his reminders about statutory and common law (particularly given resurgent interest in partition under heirs’ property). He urges research care and rights-balancing, while rejecting the position that permitting survival of the partition action necessitates destruction of all survivorship rights. His view instead recognizes that where rights compete—such as the rights of testators to demand “no contest” versus those of contestants to access the courts; the rights of guardians to sell property of incapacitated owners versus those of will beneficiaries to avoid ademption; the rights of executors to liquidate and distribute versus those of beneficiaries to acquire estate assets—resolution will usually demand more nuance than a generalization can provide. There are exceptions to almost every rule, including statutory ones found in the very old books.
Dismissed at Death does more. Notwithstanding its seemingly narrow scope, the hard (or at least, harder) answers that Cronan encourages courts and commentators to seek from the past invite hard and harder questions for tomorrow, including messy ones about when certain property relationships “should” arise (or end) by contrast to when they traditionally “do.” These inquiries explore the gap between intent and sufficient acts, including whether it should be easier to exit an established relationship than get into it to begin with. Recent comparisons of the ease of will revocation (e.g., tearing) against the functions and formalities of their written execution illustrate the problem.
Cronan dances near the edge of a tougher question. Perhaps the mere filing of a partition action, irrespective of the timing of its filer’s death, should itself sever the joint tenancy. Modern courts routinely sidestep old requirements that the four unities be broken, including by finding severance buried within the commission of any act “inconsistent with” its continuation. Add up a few suppositions: joint tenancies are already disfavored and rare; restraints on alienation (even “soft” ones) are too; transactional, litigational, and donative freedoms are valued; “rights representation” is too. Perhaps most importantly, partition is deemed a critical property right, with any joint tenant able unilaterally (and even secretly) to sever survivorship anyway, perhaps through little more than a recorded “note to self.” If so, why shouldn’t the institution of litigation overtly designed to shatter concurrency also manifest intent, sufficiently, for severance to occur? If the fall of formalism in other contexts counts for anything, the question should at least be asked.
