Can heirs of a deceased sibling be included in the partition action, and how do I add them? (FL) | Florida Partition Actions

Detailed Answer — Including heirs in a Florida partition action

Short answer: Yes — if a deceased co‑owner’s interest in the property passed to heirs (for example, by intestacy or under a will), those heirs must be included in a partition action because they now own the decedent’s share. If the decedent’s interest passed to a surviving joint tenant or spouse via right of survivorship or tenancy by the entirety, heirs may not have an interest to raise in partition. To add heirs to a pending partition, you must identify them, add them as parties (usually by amending the complaint), and properly serve them. If heirs are unknown, minors, or incapacitated, the court provides procedures (service by publication, appointment of a guardian ad litem, or joinder of a personal representative) to protect their rights.

Why heirs matter in Florida partition cases

Florida’s partition law governs who belongs in a partition action and how property co‑owned by multiple persons is divided or sold. If a co‑owner died and someone else now holds the decedent’s ownership interest, that person is a necessary party in any suit that affects title or divides the property. See Florida Statutes, Chapter 64 (Partition of Real Property): Fla. Stat. ch. 64.

Key distinctions to check first

Type of ownership on the deed: If title shows joint tenants with right of survivorship or tenancy by the entirety, the decedent’s share may automatically pass to the surviving owner(s). Heirs would not receive that share. If title shows tenants in common, the decedent’s share typically passes to heirs or devisees.
Was there a will or probate opened? A will or an open probate can identify the person(s) who received the decedent’s interest. If no probate was opened, intestacy rules determine heirs. See Florida’s intestacy rules: Fla. Stat. ch. 732.

Practical steps to add heirs into a Florida partition action

Confirm the decedent’s interest and the successor(s). Pull the deed, search the county recorder’s records, and check whether the decedent’s interest passed by survivorship, by will, or by intestacy.
If probate exists: Obtain the probate case number and the name of the personal representative (executor/administrator). The personal representative may be the proper party to join in the partition or you may instead join the heirs directly if the probate has closed with a determination of distribution.
If no probate exists: Determine heirs via an affidavit of heirship, family tree, or local records. You may need to open a short-form probate or file a petition for determination of heirs if title depends on resolving heirs.
File a motion or amended complaint to add parties. In the partition case, ask the court to join the heir(s) as defendants (or plaintiffs, if appropriate). Attach supporting documents: the decedent’s death certificate, copies of wills (if any), probate filings, or an affidavit of heirship.
Serve the heirs correctly. Serve each newly added party with process according to Florida law. If heirs live out of state, use alternative service methods allowed by the court. If heirs cannot be found, request permission for service by publication and explain your due diligence efforts.
Address minors or incapacitated heirs. If an heir is a minor or legally incapacitated, ask the court to appoint a guardian ad litem or to require a guardian or next friend to be joined so the minor’s interests are represented.
If title is disputed or complicated, consider a declaratory action or asking the court for instructions. Sometimes the court must decide who owns what interest before partition proceeds. The court can also appoint a commissioner to sell the property and divide proceeds.

Example (hypothetical)

Suppose two siblings, Anna and Ben, owned a property as tenants in common. Ben died without a will. Under Florida intestacy law, Ben’s two children are his heirs and now own Ben’s one‑half interest. If Anna seeks partition, she must add Ben’s children to the lawsuit (or join Ben’s personal representative if probate is open). Anna would file an amended complaint naming the children, attach Ben’s death certificate and any probate paperwork, and serve the children. If a child is a minor, Anna would ask the court to appoint a guardian ad litem for that child before moving forward.

Relevant Florida statutes and resources

Partition of property — Florida Statutes, Chapter 64: https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0064/0064.html
Intestate succession (who inherits if there’s no will) — Florida Statutes, Chapter 732: https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html

Important note: Procedural rules (how to amend pleadings, proper service methods, and appointment of guardians ad litem) come from court rules and local practice. If you need to perform any of these steps, review the Florida Rules of Civil Procedure and your local county civil procedure requirements or consult a lawyer.

Helpful Hints

Start with the deed. The language on the recorded deed often decides whether heirs have an interest.
Order a certified copy of the decedent’s death certificate early. Courts require it to prove death.
Search for an open probate case in the county where the decedent lived; probate filings often name heirs or a personal representative.
Use an affidavit of heirship or a title company’s quiet‑title check when probate is not available—but understand these tools sometimes require court approval.
If you cannot find heirs, document every step you took to locate them; courts expect documented due diligence before allowing service by publication.
If an heir is under 18 or incapacitated, plan to ask the court to appoint a guardian ad litem before final rulings affecting property rights.
Keep timelines in mind: adding parties and serving them can delay sale or partition. Expect additional hearings if ownership or representation is unclear.
When in doubt, consult a Florida real property or probate attorney. Partition actions affect title and future marketability of the property.

Disclaimer: This article provides general information about Florida law and common procedures. It is not legal advice. For advice about your specific situation, consult a licensed Florida attorney.