Detailed Answer

Disclaimer: This information is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance specific to your situation.

What Is a Partition Action?

In Delaware, when two or more people inherit real property together and cannot agree on its use or disposition, any co-owner can file a partition action. A partition action asks the Superior Court to divide the property physically among the owners or, if a physical split is impractical, order a sale and distribute the proceeds.

Statutory Authority

Delaware’s partition laws appear in Title 25, Chapter 7 of the Delaware Code. The statute provides the court with authority to:

Order partition in kind (physical division), or
If partition in kind is inequitable or impractical, order a judicial sale with proceeds divided among owners according to their ownership shares.

See Delaware Code Title 25, Chapter 7: https://delcode.delaware.gov/title25/c007/index.html.

Who May File?

Any co-owner with a legal or equitable interest in the inherited property may initiate a partition action. Co-owners include:

Heirs named in a will or by intestacy
Devisees or legatees with a vested interest
Trust beneficiaries holding real property interests

Key Steps in the Partition Process

Prepare and file the complaint. The complaint must describe the property, list all known co-owners, and state the relief sought (partition in kind or sale).
Serve co-owners. Each co-owner receives a copy of the complaint and summons.
Court evaluation. A judge will assess whether physical division is feasible. The court may appoint a referee or master to survey and propose a plan.
Partition or sale order. If division in kind works, the court orders each share laid out separately. If not, the court orders a public auction or sealed-bid sale.
Distribution of proceeds. After sale, the clerk distributes net proceeds based on each owner’s fractional interest, minus legal costs and expenses.

Judicial Sale vs. Partition in Kind

Partition in kind works best for large, contiguous parcels that divide without significantly reducing value. If land is small, oddly shaped, or contains improvements (buildings, roads) that hinder physical division, the court will likely order a judicial sale.

Timeframe and Costs

A partition action typically spans several months to over a year. Costs include filing fees, service fees, appraisal costs, referee fees, and attorney’s fees. Costs are usually paid from sale proceeds or as the court directs.

Helpful Hints

Gather all deeds, wills, and trust documents showing ownership shares.
Communicate early with co-owners to explore a voluntary buyout or sale.
Obtain a current property appraisal to estimate market value before filing.
Consider mediation to reach a settlement and avoid litigation costs.
Track all expenses related to repairs, taxes, and insurance; the court may reimburse these from sale proceeds.
Consult a Delaware real estate attorney to ensure proper procedure and deadlines.