Florida — Partition Actions Involving a Co-owner Under Guardianship

This FAQ explains how a Florida court typically handles a partition action involving real property when one co-owner has been adjudicated incapacitated and has a court‑appointed guardian. It summarizes procedural steps, the guardian’s role, likely court oversight, and practical considerations for co‑owners. This is educational information only and not legal advice.

Detailed answer — step-by-step process under Florida law

1. Identify the legal status of the co‑owner. Confirm whether the co‑owner has been adjudicated incapacitated and whether a guardian of the person or property (or both) has been appointed by a Florida probate/guardianship court. Guardianship is governed by Florida Statutes chapter 744. See the chapter overview here: Fla. Stat. ch. 744 (Guardianship).
2. Commence or respond to the partition action (Chapter 64). A partition action is filed in circuit court under Florida Statutes chapter 64. The complaint must name all persons with an interest in the property. If one co‑owner is under guardianship, the guardian should be joined as the ward’s legal representative. See Florida’s partition statutes: Fla. Stat. ch. 64 (Partition).
3. Service and substitution of the guardian as party. The guardian (or the guardian’s attorney) must be served with the partition complaint so the guardian can appear and represent the ward’s interest. If the ward has no guardian at the time the partition is filed, the court may require appointment of a guardian or may appoint a guardian ad litem or other representative to protect the incapacitated co‑owner’s interests for the limited purpose of the action.
4. Guardian’s authority to litigate or settle. Under Florida guardianship law, guardians have powers and duties to manage the ward’s property, including pursuing or defending litigation affecting the ward’s estate. However, significant transactions involving a ward’s real property often require prior court approval or subsequent confirmation by the guardianship judge. Review Chapter 744 when considering whether the guardian must seek permission before consenting to partition or sale. (See Fla. Stat. ch. 744.)
5. Determine whether partition in kind is possible or whether sale is necessary. The court will consider whether the property can be divided physically (partition in kind) without material prejudice to the owners. If physical division is impractical or would unfairly diminish value, the court may order sale and division of proceeds. The guardian must evaluate whether a partition in kind or sale serves the ward’s best interest and may need court approval for a sale or compromise affecting the ward’s real property.
6. Appointment of a commissioner and valuation. The court typically appoints a commissioner or master to survey, value, and effectuate partition (or to conduct sale). The guardian should participate in getting appraisals and presenting evidence about fair value to protect the ward’s financial interest.
7. Court oversight and approval of transactions affecting the ward. If the outcome requires sale of the ward’s interest or an agreement that disposes of the ward’s real property interest, the guardianship court may need to approve the sale or settlement. The guardian must demonstrate that the transaction is in the ward’s best interest, that the price is fair, and that sale proceeds will be properly managed for the ward.
8. Distribution of proceeds or conveyance of divided parcels. After partition or sale, the court orders distribution. If proceeds are paid to the guardian for the ward, the guardian will be required to account to the guardianship court and to deposit or invest proceeds as required by guardianship rules and any court order.
9. Possible appeals or objections. Any co‑owner (including the ward via the guardian) may object to valuation, division, or sale procedures. Objections are decided by the court; if parties are dissatisfied, appeals follow normal appellate procedures.

Key legal points and statutory references

• Partition actions are governed by Florida Statutes chapter 64: Fla. Stat. ch. 64.
• Guardianship law and the guardian’s duties and powers are governed by Florida Statutes chapter 744: Fla. Stat. ch. 744. The guardian may need the court’s prior approval for major transactions concerning the ward’s real property.
• The guardian must always act in the ward’s best interest and provide accounting and reporting required by the guardianship court.

Practical considerations and timeline

Timelines vary. A straightforward partition by division can take a few months. Sales, valuation disputes, or the need for the guardianship court’s explicit approval can extend the matter several months longer. Expect extra steps whenever a guardian must seek approval or supply court-ordered safeguards for the ward’s proceeds.

Disclaimer

This article is for general informational purposes only and does not constitute legal advice. It is not a substitute for consulting a licensed Florida attorney who can evaluate the full facts and advise on rights, duties, and specific filings.

Helpful Hints

• Contact the guardian early. Coordination between co‑owners’ counsel and the guardian’s counsel speeds resolution.
• Gather key documents: deed, title report, mortgage statements, prior appraisals, guardianship order, and letters of guardianship.
• Obtain one or more independent appraisals to support fair valuation.
• Ask whether the guardian needs court authorization before agreeing to sale, settlement, or conveyance of the ward’s property.
• Consider mediation to settle division and valuation issues without extended litigation.
• Budget for additional court hearings and possible accounting requirements if the guardian receives proceeds for the ward.
• Hire counsel experienced in both partition law (chapter 64) and guardianship matters (chapter 744) when a guardian is involved.