When One Sibling Won’t Sell the Inherited House in Florida

When siblings inherit a house in Florida and one wants to sell while another does not, the disagreement does not stay a family argument for long — it becomes a question of Florida property law, and the answer depends almost entirely on how the house is titled and where it sits in the probate process. Do all heirs have to agree to sell property in Florida? No. Any co-owner can eventually force a sale. But “eventually” is doing real work in that sentence, because you usually cannot force anything until the estate has run far enough for title to be yours to fight over.

We at Lorenzo Law handle these matters from Coral Gables and Fort Lauderdale and take them statewide. This guide explains what a co-owner who refuses to sell can and cannot do, when a partition action is available and when it is premature, why a homestead can be completely unpartitionable, what the sibling living in the inherited house owes and does not owe, and how the money is actually divided at the end. Every legal proposition below is tied to the Florida statute or the Florida appellate decision that supports it.

Informational only. This is not legal advice, and reading it does not create an attorney-client relationship. Florida statutes are cited as they stand in the 2026 Florida Statutes and were checked against the Legislature’s official text; case law is current as of September 2026. Federal tax points are general and are not tax advice.

Do All Heirs Have to Agree to Sell an Inherited House in Florida?

No. Once you and your siblings own the house together as tenants in common, any one of you can file a partition action and the court can order the property divided or sold. Unanimity is not required, and a co-owner with a small fractional interest has the same right to bring the action as one with a large share.

That is the short answer to whether siblings inherit a house and one wants to sell can be resolved without agreement, and it is where most pages stop. The longer answer is the one that decides real cases:

• Timing. A forced sale of jointly owned property is available, but while the estate is open and the personal representative is administering the property, a separate partition suit is usually premature.
• Homestead. If the house is protected homestead and passed under the default statutory rule, it may not be partitionable at all — by anyone — until a life estate ends.
• Money. Forcing a sale does not mean splitting the proceeds down the middle. Credits, offsets and fees can move tens of thousands of dollars between siblings.

Those three points are where the outcomes live, and they are covered in order below.

How You and Your Siblings Actually Own the House

Florida law starts from a default that surprises most families. Under section 689.15, Florida Statutes:

“The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.”

Three consequences follow, and each one matters to a brother or sister who will not sell:

You are tenants in common, not partners

Each sibling owns an undivided fractional interest in the whole house — not a bedroom, not the back half of the lot. Every co-owner has an equal right to possess the entire property, which is why the sibling who lives there is not trespassing and why the siblings who do not live there are not entitled to a rent check just because they are absent.

There is no survivorship unless the deed says so

If one sibling dies while the house is still co-owned, that sibling’s share does not pass to the others. It passes into that sibling’s own estate, and you may end up co-owning with a niece, a nephew, a surviving spouse or a stranger. This is how a two-sibling problem becomes a six-owner problem in a decade.

Tenancy by the entirety is the one exception

Property held by a married couple as tenants by the entirety carries survivorship automatically, and it cannot be partitioned while the marriage lasts. Section 689.15 also provides that on dissolution of marriage, entireties property converts to a tenancy in common — which is precisely the moment it becomes partitionable.

How the house is held	What happens on a co-owner’s death	Can it be partitioned?
Tenancy in common (Florida’s default under § 689.15)	The share passes through that owner’s estate	Yes — any cotenant may sue
Joint tenancy with express right of survivorship	The share passes to the surviving joint tenants	Yes, while all are living
Tenancy by the entirety (married couple)	Passes automatically to the surviving spouse	No, while the marriage lasts; converts to tenancy in common on dissolution
Life estate + vested remainder (the § 732.401(1) homestead default)	The life estate ends; the remainder becomes possessory	No — see the homestead section below
Still titled in the decedent’s name, estate open	Title vested at death, subject to administration	Not yet in a separate suit — see the next section

Before You Force Anything: Where the House Sits in Probate

This is the question no competing page answers, and it is the first one a Florida court will ask. If you are not sure where your family’s case stands, our overview of the probate process in Florida walks through the stages.

Title vests at death, not at distribution

Florida does not make heirs wait for an order of distribution to own the property. For intestate estates, section 732.101 provides that “the decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.” For property passing under a will, section 732.514 provides that “the death of the testator is the event that vests the right to devises.”

The Fourth District Court of Appeal restated the rule in 2026 in Hi-Land Properties, LLC v. Gantt, 429 So. 3d 1014 (Fla. 4th DCA 2026):

“Generally, a decedent’s interest in non-homestead real property vests in a devisee or heir by operation of law immediately upon the decedent’s death, subject to the administration of the estate.”

The same opinion makes a point worth remembering when a buyer’s title agent starts asking questions: “a personal representative never holds title to estate real property (unless purchased during administration) and the estate is not an entity holding title.” Older authority is to the same effect — Jones v. Federal Farm Mortgage Corp., 132 Fla. 807, 182 So. 226 (Fla. 1938), and In re Estate of Slater, 437 So. 2d 1110 (Fla. 5th DCA 1983).

But the personal representative controls possession

Vesting gives you standing. It does not give you the keys, because the executor — the personal representative — controls the property during administration. Section 733.607(1) provides:

“Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration.”

The statute goes further: a personal representative’s request that a beneficiary deliver estate property “is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration.” That clause forecloses argument about whether the personal representative needs the property — though not about whether the occupant has an independent right to be there. The Fourth District made that distinction in Delbrouck v. Eberling, 177 So. 3d 66 (Fla. 4th DCA 2015), holding an evidentiary hearing may be required when the right to possession is genuinely disputed.

So a separate partition suit during administration usually gets stayed

Because non-homestead estate realty is under the personal representative’s control until administration no longer needs it, a Chapter 64 partition filed in circuit civil court while probate is open does not simply proceed. In Chin v. Estate of Chin, 15 So. 3d 894 (Fla. 3d DCA 2009), a party who had received a half interest through summary administration sued for partition and a forced sale; the trial court stayed the partition action so the administration issues could be resolved first, and the Third District affirmed.

The rule has a much older and harder root. In Leonard v. Browne, 134 So. 2d 872 (Fla. 1st DCA 1961), one of five devisee daughters sued in circuit court for an accounting against her parents’ executors and for partition of the estate land among the sisters. The trial court dismissed. The First District agreed as to the estate property, and its language was categorical:

“Since administration on the estates of Mr. and Mrs. Corbett is pending, the circuit court lacks jurisdiction to partition among their devisees the real property in the hands of their personal representatives.”

The court reached the accounting claim the same way — the complaint “does not state a cause of action in the circuit court for an accounting or other relief against the defendant executors of the subject estates. Such relief is available, if at all, in the court which has assumed jurisdiction over said estates.” The plaintiff had never asked the probate court for an inventory, an accounting or distribution, and had not shown that she could not get them there. That is still the first question a judge asks a beneficiary who arrives in the wrong division.

Two things about Leonard deserve candor, because they are the difference between using the case correctly and misusing it. First, it was decided under the pre-1973 Article V, when Florida’s probate jurisdiction sat in a separate county judge’s court and the circuit court genuinely was a different forum; today the circuit court holds both, and the modern expression of the same principle is abatement or a stay, as in Chin, rather than an absence of jurisdiction. Second, Leonard construed the 1959 statutes — section 733.01, the ancestor of today’s section 733.607(1), and the old Chapter 66 partition sections now renumbered as Chapter 64.

What survives the renumbering is the sequencing itself, and it has survived for more than sixty years: estate realty in the personal representative’s hands is not available for a separate partition suit among the beneficiaries while administration needs it.

The practical lesson: filing a partition suit the week after the funeral usually buys delay and a fee bill, not leverage. There is a better tool, and almost nobody uses it.

Florida’s Overlooked Alternative: Partition Inside the Estate Under Section 733.814

Florida gives the probate court its own partition power. Section 733.814, Florida Statutes, reads in full:

733.814 Partition for purpose of distribution.—When two or more beneficiaries are entitled to distribution of undivided interests in any property, the personal representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.

Read that carefully, because four things in it are unusual:

• “the personal representative or any beneficiary“ — a sibling does not need the executor’s cooperation to start it.
• “before the estate is closed” — it runs during administration, which is exactly when a separate Chapter 64 suit would be stayed.
• “in the same manner as provided by law for civil actions of partition” — it borrows Chapter 64’s machinery, including the sale procedures.
• “The court may direct the personal representative to sell” — the probate judge is not limited to physically dividing the property. A sale is expressly on the table.

Procedurally, this is an adversary proceeding. Florida Probate Rule 5.025(a) lists a proceeding “to partition property for the purposes of distribution” among the specifically enumerated adversary proceedings, which means formal notice, the Florida Rules of Civil Procedure, and the possibility of a default — real litigation protections for the sibling on the other side.

Why this statute exists at all

Section 733.814 is easier to understand once you know what Florida law looked like without it. In Leonard v. Browne — the 1961 case discussed above — the First District turned away a devisee who wanted the estate land divided, and explained the problem in a sentence that describes a genuine dead end:

“There is no statutory provision vesting the probate court with jurisdiction to partition the property of an estate between the heirs or devisees, or authorizing the circuit court to partition such property while it remains under the jurisdiction of the probate court incident to administration upon the estate.”

Read that against the sequencing rule and you have a trap: the circuit court could not partition estate realty during administration, and the probate court had no partition power of its own. A beneficiary who could not get the family to agree simply waited for the estate to close.

Section 733.814 arrived with the Florida Probate Code of 1974 (ch. 74-106, Laws of Florida), and it addresses precisely that gap: it puts partition power in the court administering the estate, exercisable “before the estate is closed,” at the instance of the personal representative or any beneficiary. Whatever the Legislature’s stated reasons, the practical effect is unmistakable — the dead end Leonard described is no longer there.

One honest caveat, and it is a real one. As of September 2026 section 733.814 carries no notes of decisions — no Florida appellate court has published an opinion applying or construing it in the fifty years it has been on the books. That is not a weakness in the statute. It reflects how rarely practitioners reach for it, and the text is clear enough that it has not generated appeals. It does mean the contours have never been judicially tested, and a lawyer should tell you that rather than promise a settled path.

Can the Executor Sell the House Without All the Beneficiaries Agreeing?

Florida calls the executor a personal representative, but the two words mean the same thing here, and the question — can an executor sell a house without the beneficiaries approving — has a clear answer.

Often, yes — and this is where a great deal of bad information circulates. The answer turns on one thing: what the will says about a power of sale.

If the will grants a power of sale

Under section 733.613(2), where a decedent’s will “confers specific power to sell or mortgage real property or a general power to sell any asset of the estate,” the personal representative may sell, mortgage or lease the real property “without authorization or confirmation of court.” The statute adds that the sale “need not be justified by a showing of necessity, and the sale pursuant to power of sale shall be valid.”

In plain terms: the executor can sell the family home over the objection of every beneficiary, without asking a judge, and without proving the estate needed the money. If your parent’s will contains a power of sale, that changes the whole negotiation.

If the will does not grant a power of sale — or there is no will

Under section 733.613(1), a personal representative of an intestate estate, or one whose testator conferred no power of sale (or a power so limited it cannot conveniently be exercised), may still sell the property if the sale is in the best interest of the estate — but with a critical limitation:

“No title shall pass until the court authorizes or confirms the sale. No bona fide purchaser shall be required to examine any proceedings before the order of sale.”

That sentence is the one that stops closings. A buyer’s title underwriter will not insure a sale under subsection (1) without the court’s authorization or confirmation order.

A common miscitation, corrected

Many pages — including, until this revision, ours — cite section 733.612 for the personal representative’s power over the house. It is the wrong statute. Section 733.612 lists transactions the personal representative may undertake without a court order, and it expressly excludes real property: subsection (5) permits the representative to “acquire or dispose of an asset, excluding real property in this or another state,” and subsection (21) reaches only personal property. (Subsection (7) separately authorizes the representative to “enter into a lease, as lessor or lessee, for a term within, or extending beyond, the period of administration” — that one carries no real-property exclusion.) For possession and control of the house, the correct citation is section 733.607(1); for selling it, section 733.613.

If the House Is Homestead, the Rules Change Completely

Florida homestead is not a tax discount. It is a constitutional restriction on how the property descends and who can reach it, and it is the single most common reason a straightforward-looking inherited-house dispute goes sideways.

Homestead is not an asset of the estate

The Florida Supreme Court has been categorical since 1938. In Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (Fla. 1938), the Court held:

“Neither executors nor administrators have at any time in this State had any jurisdiction over the homestead of a deceased person. The homestead is in no wise an asset of the estate of a decedent.”

That is why section 733.607(1) excepts protected homestead from the personal representative’s possession, and why the Fifth District held in Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005), that although a personal representative could take possession of apparent homestead under section 733.608(2), the representative had no power to sell it. Protected homestead descends directly to the heirs, free of the decedent’s creditors — Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988).

Homestead does not block a partition between co-owners

The constitutional exemption from forced sale protects against creditors, not against a fellow owner. Spitzer held that “a judicial sale if necessary for purposes of partition among the beneficiaries of a homestead, is not included in the exemption from forced sale under process of any court.” The Supreme Court confirmed the modern rule in Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978), holding “that our constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property, if such partition and forced sale is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.” The Fourth District put it compactly in Hieke v. Hieke, 782 So. 2d 443 (Fla. 4th DCA 2001):

“The constitutional prohibition against the forced sale of a homestead does not apply where the sale is necessary to protect an ownership interest in the property.”

The rule goes back to Donly v. Metropolitan Realty & Investment Co., 71 Fla. 644, 72 So. 178 (Fla. 1916), where the Court held the forced-sale exemption “was not intended to prevent a partition of the homestead property among the beneficiaries thereof, even if a judicial sale be necessary to effect partition.” In Donly, the decedent left a widow, two minor children and an adult son of a former marriage; the pleas of the widow and the minor children that the homestead could not be partitioned were overruled, and the Supreme Court affirmed. Note the Court’s reasoning turns on protecting adult heirs “who may be adults with families of their own living away from the homestead” — it did not squarely analyze partition over a minor child’s protected interest.

The one situation where homestead does block partition

Where a court has awarded one party exclusive possession of the residence — typically a custodial parent raising minor children after a dissolution — partition can be barred. That was Hoskin v. Hoskin, 329 So. 2d 19 (Fla. 3d DCA 1976), and the Supreme Court in Tullis distinguished it on exactly that ground, noting that in Tullis neither party had been given exclusive possession. If an order of exclusive possession exists, read it before filing anything.

The Florida Homestead Trap: When the House Cannot Be Partitioned by Anyone

This is the most important section on this page, and it appears on no competing Florida page we have found.

The default outcome creates successive interests, not co-ownership

Where homestead is not validly devised and the decedent leaves a spouse and descendants, section 732.401(1) provides that “the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”

That sounds like shared ownership. Legally, it is not. A life tenant and a remainderman do not own the property at the same time — they own it one after the other. And Florida’s partition statute reaches only concurrent owners. Section 64.031 allows the action to be filed “by any 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.”

The Fifth District stated the consequence in a single sentence in Barden v. Pappas, 532 So. 2d 707 (Fla. 5th DCA 1988):

“Interests which are merely successive, and not concurrent, are not partitionable.”

Both directions are closed. A life tenant cannot partition against the remaindermen — Garcia-Tunon v. Garcia-Tunon, 472 So. 2d 1378 (Fla. 2d DCA 1985), where a surviving spouse holding a life estate could not partition against her stepchildren. And a remainderman cannot partition either. The Florida Supreme Court held in Weed v. Knox, 157 Fla. 896, 27 So. 2d 419 (Fla. 1946), that “one remainderman cannot bring a suit for partition against another remainderman where there is an outstanding life estate existing in a third person.”

And the surviving spouse pays for everything

Now add the money. A life tenant carries the ordinary cost of the property herself. In Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), the Third District held: “The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant.” The list of what that covers comes from Schneberger v. Schneberger, 979 So. 2d 981, 983 (Fla. 4th DCA 2008), quoted in Aronson: the life tenant pays “taxes, insurance, homeowner’s association fees, and general repairs,” while extraordinary expenses and special assessments fall on the remainderman.

Aronson also refused reimbursement. The trial court had ordered the trust to repay the widow $129,895 for a mortgage payoff and $136,519.67 for repairs; the Third District reversed, finding “there is no basis in law to charge the remaindermen with the obligation to reimburse the widow for the amount she paid to satisfy the mortgage on the condominium before her husband’s death.” (Where a life tenant pays off a mortgage still outstanding against the estate, the analysis differs.)

Put the pieces together and the trap is obvious:

Who wants what	Can they force it?	Why
Surviving spouse wants to sell and move	No	A life tenant cannot partition against remaindermen — Garcia-Tunon
Children want to sell and take their money	No	A remainderman cannot partition while the life estate is outstanding — Weed v. Knox
Children want the spouse to contribute to the roof	Depends	Ordinary upkeep is the life tenant’s burden; extraordinary items fall on the remainderman — Schneberger
Spouse wants reimbursement for what she has paid	Generally no	Aronson reversed exactly that award

The surviving spouse is left paying taxes, insurance and upkeep on a house she cannot liquidate. The children cannot reach a dollar until she dies. Nobody can force a sale. This is what practitioners call the homestead trap, and there is one way out of it — on a clock.

The Six-Month Window That Unlocks the House

Section 732.401(2) gives the surviving spouse an alternative:

“In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.”

That single election converts successive interests into concurrent interests. A tenancy in common is squarely within section 64.031, and under Spitzer and Tullis homestead status is no bar to partition between co-owners. The frozen asset becomes a liquid one.

The deadline is six months from the date of death, and courts enforce it

Section 732.401(2)(b) provides: “The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime. The time for making the election may not be extended except as provided in paragraph (c).” Paragraph (c) allows only a narrow petition by an attorney in fact or a guardian of the property — and that petition must itself be filed inside the same six months.

The Second District enforced this strictly in Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019). The surviving spouse neither elected nor petitioned within six months, then moved months later for an extension under Florida Probate Rule 5.042(b) for excusable neglect. The trial court granted it. The Second District reversed, holding Rule 5.042(b) inapposite because it does not apply to acts required to be done within a specified time by statute, and there is no probate rule governing the surviving spouse’s election.

Miss the six months and the life estate is permanent. There is no excusable-neglect rescue. If you are a surviving spouse reading this and your spouse died recently, this is the deadline to raise with a lawyer this week — not after the estate closes.

One point of candor: whether the resulting one-half tenancy in common is itself partitionable is, as far as we can determine, supported by the text of section 64.031 read with Spitzer and Tullis rather than by a decision squarely so holding. We think it is the better reading. We do not present it as settled law.

Family situation at death	How the homestead descends	Partitionable?
Spouse + descendants, no valid devise, no election	Life estate to spouse, vested remainder to descendants — § 732.401(1)	No
Spouse + descendants, spouse elects within 6 months	Undivided one-half each, as tenants in common — § 732.401(2)	Yes (better reading)
No spouse, no minor child, validly devised	Passes under the will to the devisees	Yes, like any co-owned realty
Minor child surviving	Not devisable; descends under § 732.401	Generally yes — but see Hoskin where exclusive possession was awarded
Will directs the homestead be sold and proceeds divided	Homestead character is lost and proceeds become an estate asset	Not a partition question — the executor sells

That last row deserves a note, because it is the one exception that removes homestead protection entirely. In Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987), the decedent directed that the house be sold and the proceeds divided between her adult children; the court held that “upon the sale of the house the proceeds became an asset of the estate subject to the claims of decedent’s creditors.” The First District followed it in Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1996): “Because of this devise, the property lost its homestead character and, accordingly, became subject to the claim.” The Florida Supreme Court endorsed the exception in McKean v. Warburton, 919 So. 2d 341 (Fla. 2005), holding that absent a spouse or minor children, homestead “passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.”

Separately, where homestead passes by devise rather than by operation of law, the First District held in Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1992) that “the homestead in this case was an asset of the estate for purposes of effecting the devise in the will” — while still reversing an award of the house to a creditor, because that status “does not deprive the beneficiary who is also a legal heir of the right to take the homestead free of claims of the estate.” Estate-asset status for administrative purposes and exposure to creditors are two different questions.

What Is a Partition Action in Florida?

A partition action — also called a partition lawsuit or a partition suit — is the civil case that ends co-ownership of real property. It is what a partition action attorney — a partition action lawyer, in the phrasing many people search — files when co-owners cannot agree, and in Florida it is governed by the Florida partition statute, Chapter 64.

Chapter 64 of the Florida Statutes is short — nine sections in Part I — and most online descriptions cite the wrong ones. Here is what each section actually does.

Section	Official title	What it governs
§ 64.011	Jurisdiction	The entire section reads: “All actions for partition are in chancery.” This is the source of the court’s equitable power
§ 64.022	Venue	Where the action is filed
§ 64.031	Parties	Who may sue — “any one or more of several joint tenants, tenants in common, or coparceners”
§ 64.041	Complaint	What the pleading must allege: the legal description, the names and residences of the owners, the quantity held by each
§ 64.051	Judgment	The court adjudges the parties’ rights and interests and orders partition if they are entitled to it
§ 64.061	Commissioners; special magistrate	“When a judgment of partition is made, the court shall appoint three suitable persons as commissioners.” Objections to their report are due within 10 days after service
§ 64.071	Sale where nondivisible	The sale itself: public auction, at least one-third down unless all parties consent otherwise, and confirmation before conveyance
§ 64.081	Costs; taxes; attorneys’ fees	Fee and cost apportionment, and payment of taxes due at the time of sale out of the purchase money
§ 64.091	Personalty	Extends the same procedures to personal property

Two citations to be careful with

Section 64.041 is frequently cited online as the authority that “any co-owner can petition the court to divide the property.” It is not. Section 64.041 is titled “Complaint” and governs only what the pleading must contain. The right to bring the action comes from section 64.031, and the court’s equitable jurisdiction from section 64.011.

Section 64.081 is even more commonly miscited — usually as the source of a co-owner’s right to be reimbursed for taxes and expenses. It is not that either. Section 64.081 is titled “Costs; taxes; attorneys’ fees.” Its only reference to taxes is a closing-mechanics direction that “all taxes, state, county, and municipal, due thereon at the time of the sale, shall be paid out of the purchase money.” There is no rents-and-profits or cotenant-accounting statute anywhere in Chapter 64. That doctrine is equitable common law, and it is covered below.

Partition in kind versus partition by sale

The default remedy is physical division. Only where the commissioners report that the land “cannot be made without prejudice to the owners” may the court order a sale under section 64.071(1), with the proceeds “divided among the parties in proportion to their interest.” Section 64.061(4) provides a shortcut: on an uncontested allegation that the property is indivisible, the court may appoint a special magistrate or the clerk to sell it privately or under section 64.071.

For a single-family house on a standard lot, physical division is almost never practical, which is why these cases resolve as sales or buyouts. But if the estate includes acreage, a duplex or multiple parcels, in-kind division is a live option and it is often the better one for the sibling who wants to keep something.

Heirs Property: The Act That Protects the Sibling Who Wants to Keep the House

In 2020 Florida adopted the Uniform Partition of Heirs Property Act, now Part II of Chapter 64 at sections 64.201 through 64.214. It applies, under section 64.203(1), “to partition actions filed on or after July 1, 2020.” Florida practitioners use heir property and heirs property interchangeably; the statute uses the plural.

Almost every article frames the Act as a technicality. It is not. If you are the sibling who wants to keep the family home, the UPHPA is your best defense, because it gives you a court-ordered appraisal, a right of first refusal at that appraised value with no minority discount, and a statutory preference for keeping the property in the family.

Is your house “heirs property”?

Section 64.202 defines heirs property as real property held in tenancy in common that satisfies all three of the following as of the filing of the partition action:

1. There is no agreement in a record binding all the cotenants which governs the partition of the property;
2. One or more of the cotenants acquired title from a relative, whether living or deceased; and
3. Any one of these 20% thresholds is met: 20% or more of the interests are held by cotenants who are relatives; or 20% or more are held by an individual who acquired title from a relative; or 20% or more of the cotenants are relatives.

Under section 64.203(2), if a partition is otherwise available, “the court shall determine whether the property is heirs property,” and if it is, the property “must be partitioned under this part unless all of the cotenants otherwise agree in a record.”

A misconception worth correcting: this is not limited to intestate estates

A great deal of published commentary treats the UPHPA as a rule for families who died without a will. Read the statute. Section 64.202 requires only that a cotenant “acquired title from a relative, whether living or deceased.” The trigger is the relationship, not the mechanism of transfer. Title taken by devise under a will comes from a relative just as title taken by intestate succession does — and the phrase “whether living or deceased” expressly reaches lifetime gifts and sales between relatives, which no intestacy reading can accommodate. Intestacy appears in the section only inside the definition of “collateral,” as a yardstick for measuring kinship.

“Relative” is defined broadly: “an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this part.”

How to keep the Act from applying — and how not to

The first element is an opt-out. A binding agreement in a record that governs partition removes the property from the definition entirely. “Record” is defined broadly at section 64.202: “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” No signature ceremony, no notarisation and no recording in the official records is required by that definition — but the agreement must bind all cotenants and must actually address partition. A generic co-ownership or use agreement that says nothing about partition will not do it.

Timing matters too. The section 64.202 criteria are measured “as of the filing of a partition action,” which indicates the agreement must already exist when the case is filed. After filing, the route is the separate mechanism in section 64.203(2), which requires that all cotenants agree in a record.

The court orders an appraisal first

Under section 64.206, once the court determines the property is heirs property, it “shall determine the fair market value of the property by ordering an appraisal,” conducted by “a disinterested real estate appraiser licensed in this state” who values the property “assuming sole ownership of the fee simple estate.” A party may object not later than 30 days after notice is sent, and the hearing comes no sooner than 31 days after notice.

The cotenant buyout under section 64.207, step by step

This is the heart of the Act, and the mechanics are almost never published in full. Note first who benefits: the buyout runs against the cotenants who asked for a sale, in favor of the ones who want to stay.

Step	Deadline	What happens
1. Notice — § 64.207(1)	After the § 64.206 valuation	The court notifies the parties that any cotenant except one who requested partition by sale may buy all the interests of those who did
2. Election — § 64.207(2)	45 days after that notice is sent	An eligible cotenant notifies the court that it elects to buy. It is all-or-nothing — you buy out every requesting cotenant or none
3. Price — § 64.207(3)	—	Whole-parcel value under § 64.206 × the selling cotenant’s fractional ownership. No minority or fractional-interest discount
4. Multiple buyers — § 64.207(4)(b)	—	Allocated pro rata: each electing cotenant’s existing fraction ÷ the total existing fractions of the electing cotenants only
5. Payment — § 64.207(5)	Not sooner than 60 days after that notice	All pay → judgment and reallocation. None pay → back to § 64.208. Some default → notice to the payers
6. Cure round — § 64.207(6)	20 days after the shortfall notice	A cotenant who already paid may buy the whole remaining interest. Multiple payers reapportion using each one’s original fraction — a different denominator from step 4. Excess is promptly refunded
7. Nonappearing defendants — § 64.207(7)–(8)	45 days after the step 1 notice	Runs in parallel, not after. A sale of a served-but-nonappearing cotenant’s interest may occur only after all other prices are paid in, and only at the § 64.206 value

A worked example, because the allocation formula reads worse than it works. Sibling A holds 40% and asks for a sale. B (30%), C (20%) and D (10%) may elect. If only B and C elect, the denominator is their combined 50% — so B buys 30/50 of A’s interest and C buys 20/50. Larger stayers get proportionally more, and D, who sat out, gets nothing.

The seven factors that can save the house

If a buyout does not resolve the case, section 64.208(1) sets a default in favor of keeping the property: the court “shall enter a judgment of partition in kind unless the court is satisfied that commissioners appointed pursuant to s. 64.061 have considered the factors listed in s. 64.209 and found that partition in kind will result in prejudice to the cotenants as a group.” Section 64.208(3) allows owelty — a cash equalizing payment — so the division need not be perfectly equal in value.

Section 64.209(1) lists what the commissioners must weigh:

1. Whether the heirs property practicably can be divided among the cotenants;
2. Whether division would materially reduce the aggregate fair market value compared with selling the whole;
3. The collective duration of ownership or possession by a cotenant and one or more relative predecessors in title or possession;
4. A cotenant’s sentimental attachment to the property, “including any attachment arising because the property has ancestral or other unique or special value”;
5. The lawful use a cotenant is making of the property and the degree of harm from losing that use;
6. The degree to which the cotenants have contributed their pro rata share of property taxes, insurance and other expenses of ownership;
7. Any other relevant factor.

Section 64.209(2) forbids treating any one factor as dispositive without weighing the totality. Read factors 3, 4, 5 and 6 together and you can see the profile the legislature had in mind: the family member who has lived in the home for years, has an ancestral connection to it, and has been paying the taxes. If that is you, this is the statute to build your defense around.

Where in-kind division is not possible, section 64.210 makes an open-market sale through a licensed broker the default rather than a courthouse auction — and the broker must offer the property “in a commercially reasonable manner at a price no lower than the determination of value.” If the parties agree on a broker within 10 days of the order, the court appoints that broker. This alone typically produces a materially better price than a Chapter 64 auction.

A candid note on the case law

As of September 2026, no Florida appellate decision appears to have construed or applied any section of Part II of Chapter 64. Two 2025 appeals presented textbook heirs-property facts and were decided without reference to the Act: Seaborn v. Seaborn, 413 So. 3d 989 (Fla. 2d DCA 2025), involving two siblings and their mother’s home, and Hefley v. Colombo, 420 So. 3d 589 (Fla. 3d DCA 2025), involving two sisters and jointly inherited property. Both proceeded entirely under Part I. More than six years after taking effect, the Act has not produced a single reported appellate construction. That cuts both ways: there is no adverse precedent, and there is no map.

Who Gets Credit for What: The Cotenant Accounting

Forcing a sale is only half the fight. The other half is the accounting, and it routinely moves more money than the sale price argument does.

Start with what is not the law: there is no Florida statute that entitles a cotenant to reimbursement for taxes, insurance, mortgage payments or improvements. Chapter 64 contains no such provision. The doctrine is equitable, applied through the chancery jurisdiction conferred by section 64.011. As the First District put it in Green v. Green, 16 So. 3d 298 (Fla. 1st DCA 2009), “Partition proceedings are in equity,” and because partition is a subject of equitable jurisdiction the trial court will be affirmed absent an abuse of discretion in determining whether credits or set-offs are appropriate.

What is creditable

The foundational statement comes from the Florida Supreme Court in Potter v. Garrett, 52 So. 2d 115, 116 (Fla. 1951), quoted in Barrow v. Barrow, 527 So. 2d 1373, 1376–77 (Fla. 1988): a cotenant “is entitled to reimbursement for one-half the money she paid on the principal and interest of the mortgage, for taxes and insurance and for other moneys she spent on essential improvements to preserve the property.”

The Second District restated it for ordinary co-owners in McFall v. Trubey, 992 So. 2d 867, 869 (Fla. 2d DCA 2008): “A tenant who pays his cotenant’s proportional share of expenses such as mortgage payments, taxes, and necessary repairs is entitled to credit for those payments against sale proceeds.”

Four refinements matter in practice:

• Principal and interest are treated alike. Florida draws no distinction between them for contribution purposes.
• Improvements are credited by value added, not by cost. The Third District held in Hernandez v. Hernandez, 645 So. 2d 171 (Fla. 3d DCA 1994) that “cost is not the correct measure. In order to be entitled to credit, the improving cotenant must establish the amount that the improvement enhanced the value of the property.” Spending $80,000 on a kitchen that adds $45,000 of value earns a credit measured by the $45,000.
• Repairs that preserve are credited dollar-for-share. Hernandez: “Expenditures which preserve the property are a legitimate item for credit at the time of partition sale. Such expenditures include needed repair, maintenance, and replacement.” If the other cotenant challenges necessity and reasonableness, they must be established.
• A credit is a credit, not more ownership. Paying more than your share does not enlarge your percentage — it creates a claim against the other’s share of the proceeds, per Biondo v. Powers, 743 So. 2d 161 (Fla. 4th DCA 1999).

Timing limits apply as well. In Fernandez v. Marrero, 282 So. 3d 928 (Fla. 3d DCA 2019), the Third District confirmed that “in a partition proceeding, there must be an accounting to determine whether each co-tenant has paid his or her proportionate share of the expenses of the property,” but expenses incurred before the cotenancy arose are not creditable, and a down payment made when title is taken jointly is presumptively a gift.

Expense	Creditable?	Measure
Property taxes	Yes	The other cotenants’ proportionate shares
Hazard insurance	Yes	Proportionate shares
Mortgage principal	Yes	Proportionate shares
Mortgage interest	Yes — treated the same as principal	Proportionate shares
HOA and condominium assessments	Yes, as an expense of maintaining ownership	Proportionate shares
Necessary repairs, maintenance, replacement	Yes, if necessary and reasonable	Proportionate shares; necessity must be proved if challenged
Capital improvements	Yes, but limited	Enhancement in value at partition — not cost (Hernandez)
Expenses before the cotenancy began	No	— (Fernandez)
Down payment where title was taken jointly	Presumptively no	Treated as a gift (Fernandez)
The occupying cotenant’s own use of the home	Charged against the claimant	Reasonable rental value — see next section

What the partition court will not sort out for you

Families arrive with every grievance they have, and assume the partition case is where all of it gets settled. It is not. The accounting a partition court conducts is the accounting between cotenants about this property. Claims that merely involve the same people are a different lawsuit.

Leonard v. Browne drew that line. Along with the estate claims, the plaintiff asked the partition court to make her sister’s husband account for money he had collected as the co-owners’ managing agent under a timber contract on the very land she wanted partitioned. Same land, same family, same money. The First District still said no:

“[T]he accounting sought against Mr. Browne as plaintiff’s agent is collateral to and independent of her right of partition under the statute. Such accounting is in no wise ‘necessary to enable the court to adjudicate fully upon the rights and interests’ of the parties to the partition. It has no proper place in this proceeding.”

The quoted phrase comes from the pleading statute — then section 66.04, today section 64.041. Read what follows carefully, because there is real tension in this area and most sources flatten it.

Lockwood v. Walker, 127 Fla. 20, 172 So. 359 (1937), states the incidental-jurisdiction rule broadly: once a court has jurisdiction to partition, it may determine, as an incident to the main relief, “such questions of right as may have risen out of the relations existing between the complainant and defendant at the time the incidents occurred giving rise to differences between them.” That is a wide grant, and it is still being quoted as one — the Fourth District repeated it in HSBC Mortgage Corp. (USA) v. Townsend, 359 So. 3d 822 (Fla. 4th DCA 2023).

The narrowing is Leonard‘s. Leonard read Lockwood as having “restricted application of the rule to controversies directly affecting the partition proper, such as those involving the legal title and right of possession,” and used that reading to keep the agent accounting out of the case. That gloss has never been overruled. But it is a gloss: the limitation lives in Leonard‘s reading of Lockwood, not in Lockwood‘s own words, and a court inclined toward the broader statement has 1937 and 2023 authority to reach for.

The safer working assumption is that the claim must go to title, possession, or the shares themselves. Contribution for taxes, insurance, mortgage payments and preserving repairs does — those change what each cotenant nets from the property, which is why the cases above credit them. A dispute about how a sibling handled money in some other capacity — as an agent, an attorney-in-fact under a power of attorney, a trustee, a business partner, or a personal representative — generally does not. Neither does a claim for the contents of the house, the car, or the bank accounts.

This matters more than it sounds. Load the partition complaint with collateral claims and you invite a motion that costs you months. Leave a genuine claim out because you assumed the partition would capture it, and you may find the property sold and the proceeds distributed with the question never asked. The sequencing decision — what belongs in the partition, what belongs in the probate case, and what needs its own action — is worth making deliberately at the start.

The Rental-Value Offset: Why Asking for Reimbursement Can Cost You

This is the most consequential rule on the page, and it is the one most families learn too late.

The Florida Supreme Court’s decision in Barrow v. Barrow, 527 So. 2d 1373 (Fla. 1988) has two halves that must be read together. The first protects the occupying cotenant. The second takes that protection away the moment he asks for money.

Half one. A cotenant in exclusive possession who takes no rents from third parties “is not liable or accountable to the cotenant out of possession unless he or she holds adversely or as a result of ouster or its equivalent.” Living in the house is not, by itself, a debt to your siblings.

Half two. But, in the Court’s own words, “when a cotenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, his claim may be offset by the value of his or her use of the property which has exceeded his or her proportionate share of ownership.” No ouster is required for the offset. The rental value is available “solely as an offset against the claim,” and it is capped at the amount of the contribution claim — in Barrow itself, the rental value exceeded the $2,591 contribution claim, so the offset was limited to $2,591.

The practical consequence is stark, and the First District showed it in Brisciano v. Byard, 615 So. 2d 213 (Fla. 1st DCA 1993). The trial court found the occupying cotenant entitled to a credit of $21,075.54 for mortgage, insurance and tax payments. It then credited the other cotenant with the fair rental value of the property, “stating that the credit exceeded Brisciano’s interest, thus eliminating any credit on either side.” Twenty-one thousand dollars of documented payments, netted to zero.

So here is the strategic point no other page makes: if you are the sibling living in the inherited house and you do not want to be charged rent, think hard before filing a claim for reimbursement. The offset is a shield, not a sword — your siblings generally cannot recover rent from you affirmatively without proving ouster — but you hand them the shield the moment you ask for contribution.

The reverse strategy also follows: if you are the sibling who moved out and you believe the occupancy has been worth more than the carrying costs, one of your better moves is to let the other side put its contribution claim on the table first.

One limitation. Where exclusive possession arises from a court order or the parties’ agreement, the offset may not apply — a refinement of Barrow, not a repudiation of it.

A note on an old conflict: before 1988 the districts disagreed about whether the offset was available at all. Barrow resolved it, quashing the decision below and disapproving Adkins v. Edwards, 317 So. 2d 770 (Fla. 2d DCA 1975), Seesholts v. Beers, 270 So. 2d 434 (Fla. 4th DCA 1972) and Vandergrift v. Buckley, 472 So. 2d 1325 (Fla. 5th DCA 1985) to the extent they precluded a rental-value offset. There is no live district split today.

When Your Brother or Sister Is Living in the House Rent Free and Refuses to Leave

A sister living rent free in an inherited house, or a brother who refuses to sell the inherited home and will not move out, is the most common version of this dispute. The legal answer disappoints people, so it is better heard early.

“My brother has lived in mom’s house for two years and pays us nothing” is the most common sentence we hear on these calls. The legal answer disappoints people, and it is better to hear it early.

Sole occupancy is not enough

Because each cotenant has an equal right to possess the whole property, one sibling’s occupancy is presumed to be occupancy for all. To convert it into a rent obligation, you must prove ouster. The standard comes from Stokely v. Conner, 69 Fla. 412, 68 So. 452 (Fla. 1915), quoted in Barrow: the claimant must show “acts of possession inconsistent with, and exclusive of, the rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership.”

And the adverse claim must be communicated. The Florida Supreme Court held in Coggan v. Coggan, 239 So. 2d 17, 19 (Fla. 1970): “There can be no holding adversely or ouster or its equivalent, by one cotenant unless such holding is manifested or communicated to the other.” Long possession alone will not do it — “exclusive possession by one tenant in common, and receipt of the rents and profits of the common land, for a great length of time, is not sufficient to create a legal presumption of the actual ouster of a cotenant.”

The Second District reaffirmed all of this in 2025 in Seaborn v. Seaborn, 413 So. 3d 989 (Fla. 2d DCA 2025) — two siblings who inherited their mother’s home. The court affirmed the order of partition and sale but reversed a $117,000 back-rent credit, because the brother “neither alleged nor proved acts” amounting to ouster and the trial court had found no communication of an exclusive claim. The award rested on sole occupancy alone, “which, as a matter of law, is not a basis” for rent.

Seaborn carries a second lesson, about when the clock starts. The mother died in 2014, but the property was held in trust and the siblings’ cotenancy was not created until a final judgment in February 2023. The earliest any rent claim could run was that date — not the date of death. Before the cotenancy exists there is nothing to account for between cotenants; any obligation runs to whoever holds title, which here was the trust.

What does count as ouster

Ouster does not require force. In Gale v. Hines, 17 Fla. 773 (Fla. 1880), the Supreme Court held: “Every ouster is an actual ouster, whether it be the result of positive expulsion, or whether it results from exclusive possession accompanied by such acts or facts as amount to a denial of the right of the co-tenant out of possession.” An exclusive possession “connected with some act amounting to a denial of the right of the co-tenant out of possession, is enough.”

Concrete examples from the case law:

• Changing the locks and denying access — Moraitis v. Galluzzo, 511 So. 2d 427 (Fla. 4th DCA 1987).
• Rejecting a demand for rent while asserting exclusive ownership — the Third District held in Joseph v. Joseph, 83 So. 3d 965 (Fla. 3d DCA 2012) that “the former wife’s rejection of the estate’s demand for rent, and the adversity of the former wife’s claim of exclusive possession of the estate’s property, are tantamount to an ouster, such that the former wife became liable for one-half of the rental value.”
• Serving a complaint that asserts a superior possessory right can supply the necessary adversity — Diedricks v. Reinhardt, 466 So. 2d 375 (Fla. 3d DCA 1985).

Point three is worth pausing on. Diedricks also holds the converse: filing a partition action by itself does not oust anyone. The Third District explained that “a complaint for partition, being not inconsistent with the common possession by the co-tenants, [is not] an action adverse to either co-tenant’s right of possession. The goal of an action for partition, unlike the goal of an action for ejectment, is to avoid the problems arising from common possession of the property, not to recover possession of the individual moiety.” If you want the rent clock to start, a partition complaint alone will not start it — a written demand will.

What you recover, and from when

The measure is your fractional share of the property’s reasonable rental value — not the full rental value, and not what you have been paying for substitute housing. The First District in Bailey v. Parker, 492 So. 2d 1175 (Fla. 1st DCA 1986) held the occupant accountable for one half the rental value after the ouster; the Fourth District awarded “one-half of the reasonable rental value of the premises” in Moraitis.

Damages run from the date of the ouster — the day the locks changed, or the day the adverse claim was communicated. Not from the date of death, and not from the day occupancy began.

And you must prove the right number. In Artis v. Stephens, No. 4D2024-3049 (Fla. 4th DCA June 3, 2026), the trial court correctly found an ouster — the personal representative had changed the locks — then awarded the excluded cotenant $23,400 based on the $1,300 a month she had paid for somewhere else to live. The Fourth District reversed. The measure “is the reasonable rental value of the subject property, not the ousted cotenant’s actual rental expenses,” because the credit exists to account for the occupier’s disproportionate use, “not to reimburse the ousted cotenant for substitute housing.” She had the chance to prove the property’s rental value and did not, so the credit was struck entirely. (The same opinion affirmed her $39,000 credit for the payments she made to pull the house out of foreclosure twice — preservation payments are a different question.) Competent evidence of the property’s reasonable rental value — usually an appraiser or a rental-market expert — is not optional. The Third District made the point squarely in Cauble v. Kaczmarski, 421 So. 3d 776 (Fla. 3d DCA 2025), reversing in part because the trial court had excluded expert testimony on fair rental value. If you intend to argue the number, you must be allowed to prove it — and you must actually try.

Conduct	Ouster?
Living in the house alone for years and paying nothing	No — Coggan, Seaborn
Collecting rent from a third-party tenant	No ouster needed — those rents are accountable
Changing the locks and refusing access	Yes — Moraitis
Refusing a written rent demand while claiming exclusive ownership	Yes — Joseph
Denying in a lawsuit that you are a co-owner	Possible, but a denial first made at trial can be too late — Coggan
Filing a partition action	No — Diedricks
Serving a complaint asserting a superior right to possession	Can be — Diedricks

How to Remove a Sibling from a Deceased Parent’s House

You cannot evict a co-owner

Chapter 83 governs landlord and tenant. There is no landlord-tenant relationship between co-owners, so there is no lease to terminate and no summary eviction available. The Fifth District stated the principle in Smith v. Smith, 464 So. 2d 1287 (Fla. 5th DCA 1985): cotenants “have rights of non-exclusive possession and normally a joint tenant cannot dispossess or charge for the use of jointly owned property made by another tenant,” so “as a practical matter the right of a co-tenant under such circumstances is to either make use of the jointly owned property or to seek partition.” (That passage appears in a footnote and is dicta, and the case was later distinguished — but it states the principle accurately.)

Ejectment, and only on ouster

The correct action is ejectment under section 66.021, available to “a person with a superior right to possession,” with exclusive jurisdiction in the circuit court and expressly cumulative to other remedies. The elements, as the Fourth District stated them in Partridge v. Partridge, 940 So. 2d 611, 612 n.2 (Fla. 4th DCA 2006) and the Third District applied them in Silva v. de la Noval, 307 So. 3d 131 (Fla. 3d DCA 2020), are: “(1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.”

Between cotenants, element two is the wall. Ejectment lies only where the occupying cotenant has committed an ouster — Gale v. Hines. Simply living in the house and refusing to leave is not it.

Can the occupant be removed before the sale closes?

Usually not. In Joyner v. Rogers, 182 So. 2d 628 (Fla. 4th DCA 1966), the Fourth District reversed a rent award against the occupying party, noting she “was entitled to the possession up to the time the partition sale was confirmed.” Title does not pass until the court approves the sale and orders a conveyance — section 64.071(3).

After confirmation and conveyance, possession is enforceable. The Supreme Court held in Keil v. West, 21 Fla. 508 (Fla. 1885) that following a partition decree, decree of sale and conveyance, the purchaser “is entitled to a writ of assistance to put him in possession” against a party to the decree, and that a separately pending ejectment “did not oust the court of equity of its jurisdiction or bar the remedy.” The modern analogue is Florida Rule of Civil Procedure 1.580: “When a judgment or order is for the delivery of possession of real property, the judgment or order shall direct the clerk to issue a writ of possession.” The equitable standard survives in Sarasota-Fruitville Drainage District, 157 Fla. 207, 25 So. 2d 498 (Fla. 1946), where the Supreme Court held the writ “should ordinarily be granted in favor of the purchaser … when the sale has been confirmed and the deed has been given.”

What the personal representative can do during administration

Different rules apply while the estate is open. Section 733.607(1) provides that the personal representative “may maintain an action to recover possession of property or to determine the title to it.” The forum is the circuit court sitting in its probate capacity; the Third District held in Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1985) that the jurisdictional statutes read together give “the circuit court, in its probate capacity, jurisdiction to determine the right of possession of real property in matters relating to the settlement of the estates of decedents.” (Swartz nonetheless reversed, because possession had been decided without an evidentiary hearing where fact issues existed — cite it for jurisdiction, not for outcome.)

The personal representative must also carry a burden. In In re Estate of Grant, 558 So. 2d 208 (Fla. 2d DCA 1990), the court affirmed denial of a petition for delivery of property where the representatives “failed to allege and prove that the personal property was property of [the] estate.”

And none of this reaches protected homestead

Homestead sits outside the personal representative’s possession entirely. Section 733.608(2) authorizes the representative — “but not required” — to take possession of apparent homestead only where it “is not occupied by a person who appears to have an interest in the property,” and only “for the limited purpose of preserving, insuring, and protecting it.” An heir actually living in the home falls outside that power. Section 733.608(3) gives the representative a lien on the property and its revenues for funds spent preserving it, and the statute provides the representative “shall not be liable for failure to take possession of the protected homestead.”

So where the family home is protected homestead and a sibling is living in it, removing that sibling is not an estate remedy at all. It runs between the co-owners — ejectment on proof of ouster, or partition.

The Caregiver Sibling: Years of Care, and What It Is Worth

One sibling moved in, cared for a parent through a long decline, and now says the house should be hers. The others say she lived rent-free for six years. Both feel entirely justified. Here is what Florida law actually does with it.

Family caregiving is presumed to be a gift

Ordinarily the law implies a promise to pay for services. That reverses among family members living together. The rule traces to Mills v. Joiner, 20 Fla. 479 (Fla. 1884) and was adopted by the Florida Supreme Court in Florida National Bank & Trust Co. of Miami v. Brown, 47 So. 2d 748 (Fla. 1949): it is “a presumption of law that the father is not bound to pay a child, though of full age, for services while living with him at home, and as one of the family.” In Brown itself, a daughter recovered nothing despite decades of care.

The Fifth District applied the presumption to bar a live-in caregiver’s quantum meruit claim in McLane v. Musick, 792 So. 2d 702 (Fla. 5th DCA 2001), reinforced by the claimant’s own admission that he would have rendered the services regardless of payment, out of love and affection. Compare the non-family baseline: where a non-relative renders services that are knowingly and voluntarily accepted, the law presumes an expectation of payment — Aldebot v. Story, 534 So. 2d 1216 (Fla. 3d DCA 1988).

What rebuts the presumption

Proof of an express contract, or a contract implied in fact shown “by facts and circumstance which show that both parties at the time the services were performed contemplated or intended pecuniary recompense” — Della Ratta v. Della Ratta, 927 So. 2d 1055 (Fla. 4th DCA 2006). The touchstone is a mutual expectation of payment existing when the care was given, not a sense of fairness formed afterwards.

Della Ratta is also the key limiter, and it is good news for many caregivers: the presumption applies only where the claimant lived with the family member “as one of the family” and seeks compensation for personal services. It does not reach a claim for reimbursement of property improvements, and it does not apply where the child did not reside with the parent.

The deadline that quietly destroys most of these claims

A claim for pre-death services is a claim against the estate, and it is governed by the nonclaim statutes. Under section 733.702(1), the claim must be filed in the probate proceeding on or before the later of three months after first publication of the notice to creditors or, for a creditor entitled to service, 30 days after service. Untimely claims are barred even without an objection, and extensions may be granted “only upon grounds of fraud, estoppel, or insufficient notice of the claims period.” Section 733.710(1) adds an absolute two-year bar from the date of death.

Two traps close the exits:

• Filing a lawsuit is not filing a claim. The Florida Supreme Court held in Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991) that “the mere filing of an action against the personal representative was not sufficient compliance with the requirement to file a statement of claim under the nonclaim statute.”
• Relabelling the demand does not save it. In Velzy v. Estate of Miller, 502 So. 2d 1297 (Fla. 2d DCA 1987), the Second District held that “absent a timely, valid claim filed in decedent’s estate, appellant is barred under the provisions of section 733.702 from bringing the cause of action below for partition.” The Second District applied the same principle in Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005), holding a claimant “could not evade the requirement that she file her claim within the time limit imposed by section 733.702 by recasting her creditor’s claim as a request to have the probate court determine the ownership of the accounts.” (Velzy itself concerned personal property, so its application to a real-property partition rests on its reasoning rather than its facts.)

Can the barred claim come back as an offset in the partition? Probably not. Florida allows recoupment defensively after the limitations period has run — but the Fourth District held in Davis v. Starling, 799 So. 2d 373 (Fla. 4th DCA 2001) that “the defensive use of recoupment … is not available to defeat a claim for non fungible property such as real estate.” Section 733.702(4)(c) does permit a counterclaim against the estate in an action the estate itself instituted, capped at the estate’s recovery in that action. The safe course is to file a timely statement of claim.

Post-death expenses are different. A claim and liability arising after the decedent’s death is not subject to the statute of nonclaim — Coba v. Craig, 881 So. 2d 733 (Fla. 3d DCA 2004), restated in Joseph v. Joseph. So the taxes, insurance and mortgage the caregiver has paid since the death go into the ordinary partition accounting, subject to the rental-value offset described above.

If your parent promised you the house

Florida draws a sharp line between a promise to pay for services and a promise to leave property.

• A contract to pay can be oral. The Supreme Court enforced an “express oral contract to perform services … during the lifetime of the decedent, for which payment was to be postponed until the death of the decedent” in Briggs v. Fitzpatrick, 79 So. 2d 848 (Fla. 1955), holding “the fact that the express contract may be an oral rather than a written one does not affect the validity of the obligation.” The one-year statute of frauds does not bar it because death is uncertain — Schenkel v. Atlantic National Bank of Jacksonville, 141 So. 2d 327 (Fla. 1st DCA 1962).
• A promise to devise must be in writing, signed before two witnesses. Section 732.701(1) provides that no agreement to make a will, to give a devise, or not to revoke a will “shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses.” The Fourth District applied it with “no exceptions” in Renfro v. Dodge, 520 So. 2d 690 (Fla. 4th DCA 1988), and the First District held in Redd v. Talley, 584 So. 2d 616 (Fla. 1st DCA 1991) that “regardless of whether the contract is one for the conveyance of property or for the devise of property, the oral contract is not enforceable.”
• A services agreement lasting more than a year needs a writing under section 725.01, and partial performance is not an exception — Campo v. Tafur, 704 So. 2d 730 (Fla. 4th DCA 1998); Harrison v. Pritchett, 682 So. 2d 650 (Fla. 1st DCA 1996).
• The proof standard is punishing. A contract to devise must be established by evidence that is “clear, cogent and convincing,” and by disinterested witnesses — Traurig v. Spear, 102 So. 2d 165 (Fla. 3d DCA 1958). The Supreme Court treats contracts to devise realty as “in the same class as parol agreements for the sale of lands and … clearly condemned by the Statute of Frauds” — Gable v. Miller, 104 So. 2d 358 (Fla. 1958). Florida’s Dead Man’s Statute then prevents the claimant from testifying to her own conversations with the decedent.

The Second District’s decision in Grant v. Kunke, 397 So. 3d 758 (Fla. 2d DCA 2024) is the cautionary tale, and it fails on paperwork twice over.

The mother’s own attorney prepared a lifetime contract for personal services naming the caregiving daughter as the provider. For reasons the record does not explain, it was never signed. The daughter and her husband nonetheless took the mother into their Wisconsin home, adapted it to her needs and cared for her until she died. The daughter then asked the estate for $22,000, resting on her mother’s verbal offer of $2,000 a month.

What sank her was not the missing contract. It was the deadline. The probate court found she was a reasonably ascertainable creditor and gave her 45 days to amend her claim or file a separate civil action. She did neither in time, and the Second District affirmed that her claim was barred. Her husband fared better on appeal — the court held it was an abuse of discretion to find he was not a reasonably ascertainable creditor entitled to notice, and reinstated his claim, noting that whether the siblings had agreed to pay him was irrelevant to whether he was a creditor entitled to notice in the first place.

Two lessons, and the second is the one people miss. Get the agreement signed while your parent is alive. And once they die, treat your claim as a creditor claim on a clock — because that is what it is.

Unjust enrichment and constructive trust

Both remain available in principle and both are hard. A claim can run against the estate, which “stands in the shoes of” the decedent — Magwood v. Tate, 835 So. 2d 1241 (Fla. 4th DCA 2003). But in Swindell v. Crowson, 712 So. 2d 1162 (Fla. 2d DCA 1998), a caregiver who ran errands and kept books for roughly a decade recovered nothing where the record did not show the decedent appreciated the benefit or that retention was inequitable, and where she never billed for or documented her services. The enrichment must also come at the claimant’s own expense — the constructive-trust claim failed on that ground in Steinhardt v. Steinhardt, 445 So. 2d 352 (Fla. 3d DCA 1984).

And a broken promise plus improvements generally does not produce title. In McLane v. Musick, allegations that the decedent fraudulently induced improvements by promising to will the property were “insufficient to permit a court to impose a constructive trust and require the owner to transfer the property,” though sufficient to support restitution through an equitable lien. Document what you spend. The realistic remedy for a caregiving child is an equitable lien or restitution for documented contributions — not the house.

The practical planning point, for anyone reading this before a parent dies: a signed personal services contract, prepared properly and executed, is the difference between a paid caregiver and an unpaid one. Have that conversation while it can still be had.

What Property Cannot Be Partitioned in Florida

Partition is close to an absolute right among concurrent owners, but it is not unlimited. Five categories resist it.

Successive interests

A life estate followed by a remainder cannot be partitioned across the divide, in either direction — Barden v. Pappas, Garcia-Tunon, Weed v. Knox. Cotenants of a life estate can partition among themselves, and cotenants of a remainder can partition among themselves; what cannot be done is partition that crosses from the possessory estate to the future one.

Tenancy by the entirety

Section 689.15 excepts entireties property, which cannot be partitioned during the marriage. On dissolution the tenants “shall become tenants in common” — and partition becomes available.

Property subject to a binding agreement or a prescribed division method

This is the most useful and least known category. In Robinson v. Speer, 185 So. 2d 730 (Fla. 1st DCA 1966), grantors of a 1,600-acre Volusia County tract reserved an undivided one-half mineral interest and the deed prescribed a method for dividing the minerals. A cotenant sued for partition by sale. The First District held the cotenant could not resort to judicial partition until the deed’s prescribed method was used, and that the reservation was a valid contractual right which did not offend the rule against perpetuities and did not unreasonably restrain partition or alienation.

The lesson generalizes: a properly drafted co-ownership or family settlement agreement that specifies how the property is to be divided can stand between a co-owner and a courthouse. It also removes the property from the UPHPA definition under section 64.202. If your family is contemplating keeping a house together, this is the document to have.

Be careful not to stretch the category, because the line is narrow. What blocked partition in Robinson was an agreement prescribing how the co-owners divide it between themselves. An encumbrance in favor of an outsider does not do the same work. In Leonard v. Browne, the sisters’ own land — the tract that was not part of their parents’ estates — was tied up in a lease and a timber purchase contract that ran until 2017, more than half a century past the date of the opinion. It made no difference:

“The holder with others of an undivided interest, though it be subject to leasehold rights in a third person, unquestionably falls within the classification of the statute.”

The court found “no legal impediment to a partition,” reasoning that the third party’s rights could be protected as an incident to the partition. So a tenant in the house, a recorded lease, a mortgage, or a long-term contract does not defeat a sibling’s right to partition. A binding agreement among the co-owners about how to divide it can.

Protected homestead where exclusive possession has been awarded

Hoskin v. Hoskin, discussed above.

Property still under the personal representative’s administration

Not a permanent bar, but a real one while it lasts — section 733.607(1), Leonard v. Browne and Chin. The answer is usually not to wait it out; it is to move the partition inside the probate case under section 733.814.

The Letter That Comes Before the Lawsuit

Most partition cases begin with a letter, and if you have received one you are probably searching for what a letter warning of a partition action actually means. It is not a court filing and it has no legal force of its own. It is a demand: sell, buy me out, or I file.

Take it seriously anyway, for three reasons.

• It can start the rent clock. A written demand for rent, coupled with your assertion of exclusive possession, can amount to an ouster — Joseph v. Joseph. Ignoring the letter does not make the demand go away; it may date it.
• It is the cheapest point to settle. Once a partition suit is filed, section 64.081 exposes you to a share of the other side’s attorney’s fees, and an appraisal, commissioners and a broker’s commission may follow.
• It sets up the accounting. Whatever you write back can be read later. If you have been paying the taxes and insurance, say so and keep the records; if you have not, understand that the other side’s credits are accruing.

The right response depends on which side of the house you are on. If you want to keep it, the answer is usually a counter-proposal with a valuation attached — and, if the property is heirs property, a note that you intend to exercise the section 64.207 buyout. If you want the sale, the answer is a deadline and a willingness to file.

We do not publish a template demand letter, and we would advise against downloading one. A letter that misstates your ownership share, concedes possession, or makes a rent demand you cannot support does real damage in a case that has not started yet.

Defenses to a Partition Action in Florida: How to Stop or Slow One

If you have been served, the practical question is how to stop a partition action — or at least how to win a partition action on your own terms. Outright dismissal is rare. Redirecting the case is not.

Most published material is written from the plaintiff’s side. If you are the sibling being sued, these are the arguments that actually exist.

• The property is heirs property. Demand a section 64.203(2) determination. If it is heirs property, you get the appraisal, the buyout right and the in-kind preference. This is usually the single most valuable move available to a defendant.
• Elect the buyout under section 64.207. Within 45 days of the notice, buy out the sibling who wants the sale — at the appraised whole-parcel value times their fraction, with no minority discount.
• Argue for partition in kind under sections 64.208 and 64.209. Where the parcel can be divided — acreage, multiple lots, a duplex — the statutory default favors you, and owelty can equalize the values.
• Attack the pleading. Section 64.041 requires a description of the lands, the names and residences of every owner, and the quantity held by each. Missing necessary parties under section 64.031 is a genuine problem, not a technicality — a partition judgment that omits an owner does not bind that owner.
• Point to a binding agreement or prescribed method — Robinson v. Speer.
• Raise the accounting. If you have been paying the carrying costs, your credits reduce what the other side takes from the proceeds. Weigh that against the rental-value offset before you assert it.
• Raise timing. If the estate is open and the personal representative has possession, the action may be abated or stayed — Leonard v. Browne, Chin. Where the property is still in the estate, the real argument is not that the sibling has no claim; it is that they filed it in the wrong place, and section 733.814 is where it belongs.
• Strike the collateral claims. If the complaint asks the partition court to settle matters that are not about title, possession or the shares — how you handled a power of attorney, a business between you, the contents of the house — those claims are “collateral to and independent of” the right of partition under Leonard v. Browne and have “no proper place in this proceeding.”
• Object to the commissioners’ report within 10 days after service, under section 64.061(3).

What is not a defense: that you have lived there a long time, that you were closer to your parent, that the sale is inconvenient, or that the house has sentimental value on its own. Sentimental attachment is a factor under section 64.209(1)(d) in an heirs property case; outside the Act it carries no independent weight.

Buying Out Your Siblings: How a Sibling Buyout Works

A sibling buyout — one heir buying out the others’ shares — is how most of these cases should end. Buying out siblings on an inherited house avoids the fee exposure of litigation and keeps the home in the family.

Most of these cases should end in a buyout, and most do — usually later and more expensively than they needed to.

Setting the price

Outside a UPHPA case, valuation is a negotiation, and the honest starting point is an independent appraisal both sides agree to commission. Inside a UPHPA case, section 64.206 gives you a court-appointed, Florida-licensed, disinterested appraiser and section 64.207(3) fixes the arithmetic: whole-parcel value times the selling cotenant’s fraction, with no discount for a minority interest.

Two adjustments come off the top in almost every deal: the mortgage balance, and the net of the accounting credits and offsets described above. A buyout negotiated without running that accounting is a buyout negotiated blind.

Funding it

Conventional refinancing, a cash-out refinance in the buying sibling’s name, and estate or probate lending are the usual routes. Each has consequences worth reviewing before you commit — particularly where the property is still in the estate, because a lender will want to see clear title vested in the borrower.

Papering it

A buyout that is not documented properly recreates the dispute in five years. What is needed is a written agreement, a deed in recordable form, a release of claims covering the accounting, and coordination with the probate file so the distribution matches. This is not a form-filling exercise — the danger of a downloaded template here is not that it is ugly but that it silently omits the release, misdescribes the interest being conveyed, or creates a homestead problem for the buying sibling’s own family. We do not publish templates for that reason.

How Much Does a Partition Action Cost in Florida, and Who Pays?

Who pays for a partition action in Florida is the question that most often changes a client’s mind about filing, because the answer is not what people expect.

Florida’s fee statute is unusual, and it is worth understanding before you decide whether to file. (This is separate from what the probate itself costs — we cover that in the cost of probate in Florida.)

Section 64.081 provides that every party “shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest.”

That is a proportional-sharing statute, not a prevailing-party statute. The Fifth District explained in Casiano v. Casiano, 370 So. 3d 991 (Fla. 5th DCA 2023) that it imposes both a right — to have the other parties share your fees — and a responsibility to share in theirs, with entitlement resolved as a matter of law and the amount left to the trial court’s discretion on equitable principles in proportion to each party’s interest. There is a recognized limit: a court does not abuse its discretion in declining to apportion the fees of a party who raised frivolous or vexatious arguments or defenses.

The Third District added in Wolland v. Wolland, 433 So. 3d 1276 (Fla. 3d DCA 2026) that a court cannot lawfully assign the entire fee to a single party. The trial court there was “entirely within its discretion” in finding that the husband’s attorney had rendered services of benefit to the partition, but it “lacked the commensurate discretion to assign liability for those attorney’s fees only to Lynn.” Reversed and remanded to apportion the fees and costs by each party’s proportional interest.

And the fee right depends on partition actually being granted. The Third District noted in Harmon v. Harmon, 453 So. 2d 77 (Fla. 3d DCA 1984) the general rule that fees are unavailable under section 64.081 where partition is not granted — while allowing a fee award under section 61.16 because the partition suit there was “in effect a petition for modification of the divorce decree.”

One timing trap is worth knowing before the sale closes. In Cauble v. Kaczmarski, 389 So. 3d 687 (Fla. 3d DCA 2024), the Third District affirmed the disbursement of partition sale proceeds to a co-owner, holding the trial court was not statutorily obligated to hold the money back while the other owner’s section 64.081 fee claim was still unresolved. A fee entitlement is worth less if the proceeds are already gone. If you intend to claim fees, raise it and ask the court to reserve before disbursement, not after.

Two practical points follow. First, if you win a partition, a share of your own attorney’s fees generally comes out of your siblings’ proceeds — which materially changes the economics of filing. Second, an heirs property case does not change this: Part II of Chapter 64 contains no fee provision of its own, so under section 64.203(3) the general section 64.081 rule continues to control. The UPHPA does add its own costs, though — the court-ordered appraisal under section 64.206 and the broker’s commission on an open-market sale under section 64.210.

Taxes When Siblings Sell an Inherited Florida House

Capital gains on inherited property is the tax question that worries families most, and the answer is usually far better than they fear.

Florida imposes no estate tax and no inheritance tax. Article VII, section 5(a) of the Florida Constitution caps any such tax at the amount creditable against the federal tax, and because the federal state-death-tax credit no longer exists, Florida’s chapter 198 estate tax computes to zero. No Florida estate tax has been owed for anyone who died after December 31, 2004. Note the precise position: chapter 198 has not been repealed — it is inoperative. Florida has never had an inheritance tax on beneficiaries. We go through this in detail in does Florida have an inheritance tax.

Federal income tax is the real question, and the answer is usually favorable.

The stepped-up basis

The step-up in basis is the reason. Under Internal Revenue Code section 1014, property acquired from a decedent generally takes a basis equal to its fair market value at the date of death. Each sibling takes that stepped-up basis in their fractional share. If the house was bought for $90,000 in 1988 and was worth $520,000 when your mother died, the built-in gain from those decades is erased.

The practical consequence: if the siblings sell reasonably soon after death and near the date-of-death value, the taxable gain is often small or nil — the “date of death appraisal” is the document that proves it, and getting one early is cheap insurance. If the house is held for years and appreciates, only the appreciation after death is taxable.

What the exclusion does and does not cover

The section 121 principal-residence exclusion generally requires ownership and use as a principal residence for two of the last five years, so a sibling who has lived in the house may qualify where a sibling who has not generally will not. That asymmetry between siblings in the same sale is worth pricing into a buyout — but the federal rules carry exceptions, and this is a question for a CPA on your specific facts rather than something to assume from a web page.

Rental income received while the house is held is taxable, and a sale by the estate rather than by the heirs has different reporting consequences. These are questions for a CPA, and we work alongside one rather than in place of one.

Sell, Keep or Buy Out: Comparing the Three Outcomes

	Sell the home	Keep it as co-owners	One sibling buys the others out
Cash to each heir	Immediate, net of costs and the accounting	None — equity stays tied up	Immediate for the selling siblings
Who carries the costs	Ends at closing	Shared indefinitely, and enforced through credits	The buying sibling alone
Ongoing conflict risk	Low once closed	High — every tax bill and repair is a new negotiation	Moderate — concentrated in the valuation
What happens if a sibling dies	Not applicable	Their share passes to their heirs, adding owners	Not applicable once closed
Tax posture	Stepped-up basis usually leaves little gain	Post-death appreciation accrues to all	Post-death appreciation accrues to the buyer
Best suited to	Siblings with different financial needs or in different states	Rarely the right answer without a written co-ownership agreement	One sibling with the means and a genuine attachment to the home

What to Do in the First 30 Days

1. Pull the deed. How the property is titled decides most of what follows. The clerk’s official records in the county where the house sits will have it.
2. Determine whether it is homestead. If the decedent left a surviving spouse or minor child, this changes everything — and may start a six-month clock under section 732.401(2)(b).
3. Read the will for a power of sale. Section 733.613(2) may put the decision in the executor’s hands entirely, without a court order and without the beneficiaries’ agreement.
4. Get a date-of-death appraisal. It anchors the basis, the buyout price and any partition valuation.
5. Keep the insurance current and the taxes paid. A lapse hurts everyone, and the payments are creditable.
6. Start a ledger. Every tax bill, insurance premium, mortgage payment and repair receipt, with dates. The accounting is won on documents.
7. Put demands in writing. If you want rent charged, a written demand matters — the clock runs from the communicated adverse claim, not from the date of death.
8. Do not sign a deed or a settlement before the accounting is run. Credits and offsets routinely move five figures.

Frequently Asked Questions

Can one sibling force the sale of an inherited house in Florida?

Yes. Any co-owner holding title as a tenant in common may file a partition action under Chapter 64, and the court can order the property sold regardless of how small that co-owner’s share is. The practical limits are timing — the estate may need to be far enough along — and the homestead rules described above.

Do all heirs have to agree to sell property in Florida?

No. Unanimity is not required once the heirs hold title as tenants in common, because section 64.031 lets any one cotenant sue the others for partition. Agreement only becomes necessary if you want to avoid litigation, which is usually the cheaper path.

What happens if one sibling wants to sell and the other doesn’t?

The sibling who wants to sell can force the issue through a partition action; the sibling who wants to keep the house can respond by buying the other out, and in an heirs property case has a statutory right to do so at the court-appraised value. Most of these cases settle as buyouts once both sides understand the fee and accounting exposure.

What happens if all the heirs don’t agree?

The court decides. A partition judgment adjudicates each party’s interest under section 64.051, orders division or sale, and settles the accounting between the co-owners — which is why the outcome is rarely a clean split of the sale price.

Can a co-owner force the sale of a house in Florida?

Yes, and the rule is not limited to siblings. Section 64.031 allows any joint tenant, tenant in common or coparcener to bring the action against their cotenants, whether the co-ownership came from an inheritance, a purchase or a gift.

What do I do if my co-owner refuses to sell the property?

Make a written demand, then evaluate a partition action against a negotiated buyout. Before filing, run the accounting and the section 64.081 fee exposure — a partition can be worth far less than it looks once fees are apportioned.

Can I sell my share of an inherited house without my siblings’ consent?

Yes. An undivided fractional interest in Florida real property is freely transferable, and no cotenant’s consent is required. In practice the buyer is usually another cotenant or an investor who buys at a discount, because a fractional interest in an occupied house is hard to finance.

Can one heir sell property without all the beneficiaries approving?

An heir can sell their own fractional interest, but not the whole property. Only the executor, called the personal representative in Florida, can convey the entire parcel — under section 733.613(2) if the will grants a power of sale, or under section 733.613(1) with a court order authorizing or confirming the sale.

Can the executor sell the house without all the beneficiaries agreeing?

Yes, if the will confers a power of sale. Section 733.613(2) permits the personal representative to sell “without authorization or confirmation of court,” and the sale “need not be justified by a showing of necessity.”

Can an executor sell property without the consent of the heirs?

The same answer applies: with a power of sale in the will, yes; without one, the representative may still sell, but “no title shall pass until the court authorizes or confirms the sale” under section 733.613(1). A buyer’s title underwriter will insist on that order.

Can the personal representative sell the homestead?

Generally no. Protected homestead is not an asset of the estate — Spitzer v. Branning — and the Fifth District held in Harrell v. Snyder that although the representative could take possession of apparent homestead under section 733.608(2), there was no power to sell it.

What is a partition action in Florida and how does it work?

It is an equitable lawsuit under Chapter 64 asking the court to end co-ownership. The court adjudicates the parties’ interests, appoints three commissioners to divide the property, and orders a sale under section 64.071 only where division cannot be made without prejudice to the owners.

What is the difference between partition in kind and partition by sale?

Partition in kind physically divides the land among the owners; partition by sale converts it to cash and divides the proceeds. Florida prefers division in kind, and in an heirs property case section 64.208(1) makes that preference explicit.

How do I file a partition action in Florida?

A partition complaint must plead the legal description, the names and residences of every owner, and the quantity held by each — section 64.041 — and every person interested in the land must be joined. Filing one without counsel is where most self-represented cases fail: a missing necessary party can undo the judgment years later, which is why we do not publish a partition form. The same calculation applies to the probate itself — see whether you need a Florida probate attorney.

What is the Uniform Partition of Heirs Property Act in Florida?

It is Part II of Chapter 64, sections 64.201 through 64.214, applying to partition actions filed on or after July 1, 2020. It gives family co-owners a court-ordered appraisal, a right to buy out the cotenants who want a sale, a preference for keeping the property intact, and an open-market sale through a broker rather than a courthouse auction.

Does the UPHPA apply if we inherited under a will rather than without one?

Yes. Section 64.202 requires only that a cotenant “acquired title from a relative, whether living or deceased” — the trigger is the family relationship, not intestacy, and the phrase expressly reaches lifetime transfers as well as transfers at death.

How long do I have to elect the cotenant buyout?

Forty-five days after the court sends the section 64.207(1) notice, and the election is all-or-nothing — you must buy out every cotenant who requested a sale. Payment is then due on a date the court sets, not sooner than 60 days after notice.

Is there a discount for buying a minority interest under the Act?

No. Section 64.207(3) fixes the price as the value of the entire parcel determined under section 64.206 multiplied by the selling cotenant’s fractional ownership, with no minority or fractional-interest discount.

What if more than one sibling wants to buy out the one who wants to sell?

The court allocates pro rata under section 64.207(4)(b), using each electing cotenant’s existing fraction divided by the total fractions of the electing cotenants only. A sibling who does not elect gets nothing from the reallocation.

What happens if a sibling elects the buyout and then cannot pay?

Section 64.207(5)(c) directs the court to notify the cotenants who did pay of the remaining interest and its price, and section 64.207(6) gives them 20 days to buy it. If more than one does, the remaining interest is reapportioned using each buyer’s original fractional ownership.

What properties cannot be partitioned in Florida?

Successive interests such as a life estate and remainder, tenancy by the entirety during marriage, property subject to a binding agreement or deed-prescribed division method, protected homestead where a court has awarded exclusive possession, and estate property still under the personal representative’s administration. Robinson v. Speer is the leading Florida decision on the contractual restriction.

What are the alternatives to a partition action?

A negotiated buyout, a listed sale everyone signs onto, a written co-ownership agreement with an exit mechanism, mediation, or — while the estate is open — a section 733.814 partition inside the probate case. All of them are faster and cheaper than Chapter 64 litigation.

Can a partition action be stopped?

Rarely outright, but it can be redirected. The strongest defensive moves are a heirs property determination under section 64.203(2), the section 64.207 buyout, an in-kind division under sections 64.208 and 64.209, a binding agreement governing partition, and — where the estate is open — abatement or a stay.

Does Florida require mediation before a partition sale?

There is no statewide statutory mediation requirement in Chapter 64. Many Florida circuits order mediation in civil cases as a matter of local practice, so in practice you will often mediate before trial, but that comes from the court’s case-management authority rather than the partition statute.

How long does a partition action take in Florida?

An uncontested case can conclude in a few months; a contested one with an appraisal, commissioners and a disputed accounting commonly runs a year or more. A heirs property case adds the section 64.206 appraisal, the 45-day election, the 60-day payment window and any 20-day cure round on top of ordinary litigation time.

How much does a partition action cost in Florida?

Cost depends on whether the accounting is contested and whether an appraisal and commissioners are needed, so any figure quoted without seeing the file is guesswork. What is worth knowing before you file is the fee rule: section 64.081 apportions attorney’s fees among all parties in proportion to their interests, so you may pay a share of your sibling’s lawyer.

Who pays for a partition action in Florida?

Everyone, proportionally. Section 64.081 binds every party to pay a share of costs and fees “commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest,” which the Fifth District confirmed in Casiano v. Casiano is a sharing rule rather than a prevailing-party rule.

Can the court make one sibling pay all the attorney’s fees?

No. The Third District held in Wolland v. Wolland, 433 So. 3d 1276 (Fla. 3d DCA 2026), that a court cannot lawfully assign the entire fee to a single party. A court may, however, decline to apportion the fees of a party who raised frivolous or vexatious arguments — Casiano.

What if my sibling is living in the inherited property and refuses to sell?

Living there is not by itself unlawful, and it does not create a rent obligation. Your remedies are a partition action to end the co-ownership, and — if you can prove ouster — a claim for your fractional share of the reasonable rental value.

Can a sibling living in an inherited house be forced to pay rent?

Only on proof of ouster, or if that sibling asks the court for reimbursement. Barrow v. Barrow holds that an occupying cotenant who takes no rents is not accountable absent ouster, but that a claim for contribution “may be offset by the value of his or her use of the property which has exceeded his or her proportionate share of ownership.”

My sister has lived rent-free in the inherited house for years. Can I recover back rent?

Not for the period before you communicated an adverse claim. Damages for ouster run from the date the ouster occurred — the lockout, or the day the adverse claim was manifested — so a written demand today generally does not reach back over the past three years.

What counts as ouster in Florida?

Acts of possession inconsistent with and exclusive of your rights, plus communicated knowledge of the claim of exclusive ownership — Stokely v. Conner and Coggan v. Coggan. Changing the locks qualifies; refusing a rent demand while asserting exclusive ownership qualifies; simply living there does not.

Can we rent the house out while the partition case is pending?

Not necessarily, and not without asking. In Hefley v. Colombo, 420 So. 3d 589 (Fla. 3d DCA 2025), the Third District found no error in an order that prohibited two sisters from renting or advertising the jointly inherited property for rent while the partition action was pending, and barred either of them from entering a contract or engaging a broker without first getting court approval. A partition court can freeze the status quo. If you want to rent it, list it, or sign anything about it while the case is open, the safe course is a motion rather than a fait accompli.

Does filing a partition action start the rent clock?

No. The Third District held in Diedricks v. Reinhardt that a partition complaint “being not inconsistent with the common possession by the co-tenants” is not adverse to a cotenant’s possession. A served complaint asserting a superior right to possession is a different matter and can supply the adversity.

How do I remove a sibling from a deceased parent’s house in Florida?

Not through a Chapter 83 eviction — there is no landlord-tenant relationship between co-owners. The route is an ejectment action under section 66.021, which requires proof of ouster, or a partition that ends in a confirmed sale and a writ of possession under Florida Rule of Civil Procedure 1.580.

Can an occupying sibling be removed before the partition sale closes?

Usually not. Joyner v. Rogers holds that a cotenant with a right of possession is entitled to remain until the partition sale is confirmed, and section 64.071(3) provides that title does not pass until the court approves the sale and orders a conveyance.

Who pays the property taxes and the mortgage while we are fighting?

Legally all co-owners share proportionally, and practically whoever writes the check gets a credit at the end. Let the insurance lapse or the taxes go unpaid and everyone loses, so the better move is to pay and document.

What happens if one sibling pays everything and the others pay nothing?

The paying sibling is entitled to a credit against the others’ share of the sale proceeds — not to a larger ownership percentage, per Biondo v. Powers. If that sibling has also been living in the house, the credit is exposed to the rental-value offset.

Do I get credit for the renovation I paid for?

Only to the extent it increased the property’s value. Hernandez v. Hernandez holds that “cost is not the correct measure” and that the improving cotenant must establish the amount by which the improvement enhanced the value of the property.

Can I get reimbursed for what I spent before I became a co-owner?

No. Fernandez v. Marrero holds that pre-cotenancy expenses are not creditable, and that a down payment made when title was taken jointly is presumptively a gift.

I was my parent’s caregiver. Am I entitled to be paid?

Only if you can rebut the presumption that family services rendered while living together are gratuitous, which requires proof that both of you expected payment at the time the care was given. Florida National Bank & Trust Co. of Miami v. Brown and McLane v. Musick show how often that presumption defeats the claim.

My parent promised me the house for taking care of them. Is that enforceable?

Not unless it was in writing and signed before two attesting witnesses. Section 732.701(1) makes an agreement to make a will or give a devise unenforceable without that formality, and the Fourth District applied it with “no exceptions” in Renfro v. Dodge.

How long do I have to file a caregiver claim against the estate?

Under section 733.702(1), the later of three months after first publication of the notice to creditors or 30 days after service on you, with an absolute two-year bar from the date of death under section 733.710(1). Filing a lawsuit is not a substitute for filing the statement of claim — Spohr v. Berryman.

Can I raise my caregiver claim as an offset in the partition instead?

Probably not, if the claim is for pre-death services. Davis v. Starling holds that defensive recoupment “is not available to defeat a claim for non fungible property such as real estate,” and Velzy and Scott v. Reyes hold that recasting a barred claim in another form does not evade section 733.702.

What about the expenses I have paid since my parent died?

Those are different, and they survive. A claim and liability arising after the decedent’s death is not subject to the statute of nonclaim — Coba v. Craig, restated in Joseph v. Joseph — so post-death taxes, insurance and mortgage payments go into the ordinary partition accounting.

How do I buy out my brother’s or sister’s share of an inherited house?

Agree a value — ideally from an independent appraisal — subtract the mortgage and net the accounting credits and offsets, then document the deal with a written agreement, a recordable deed and a release of claims. In a heirs property case, section 64.207 gives you a statutory route at the court-appraised value.

How do I calculate what it costs to buy out a sibling?

Start with the appraised value of the whole property, multiply by their fractional interest, subtract their share of the mortgage balance, then adjust for the accounting — their unpaid share of taxes, insurance and repairs, and any rental-value offset. The last step is the one people skip, and it is often worth five figures.

How does Florida homestead protection affect the sale?

It does not prevent co-owners from partitioning — Spitzer, Tullis and Hieke all confirm the exemption runs against creditors, not co-owners. What it can do is change who owns what: under section 732.401(1) a surviving spouse takes a life estate with a vested remainder to the descendants, and that structure cannot be partitioned by anyone.

My father died and left a spouse and children. Why can nobody sell the house?

Because a life estate and a remainder are successive interests, and Florida partition reaches only concurrent owners — “interests which are merely successive, and not concurrent, are not partitionable,” per Barden v. Pappas. The way out is the surviving spouse’s election under section 732.401(2), which must be made within six months of the death.

What happens if the surviving spouse misses the six-month election deadline?

The life estate becomes permanent. The Second District held in Samad v. Pla that the deadline is statutory and that Florida Probate Rule 5.042(b) excusable neglect cannot extend it, reversing a trial court that had granted an extension.

Who pays the taxes and insurance on a homestead life estate?

The life tenant. Aronson v. Aronson held that “the widow became responsible for the expenses of the property,” and the list quoted there from Schneberger v. Schneberger covers taxes, insurance, homeowner’s association fees and general repairs, with extraordinary expenses and special assessments falling on the remainderman.

What is tenancy in common and how does it affect the property?

It is Florida’s default form of co-ownership under section 689.15, giving each owner an undivided fractional interest and an equal right to possess the whole. There is no survivorship, so a deceased co-owner’s share passes through their own estate rather than to the other co-owners.

Do I have to pay capital gains tax on property inherited with siblings?

Usually far less than people expect, because Internal Revenue Code section 1014 gives each sibling a basis stepped up to the property’s fair-market value at the date of death. Only appreciation after the date of death is taxable, which is why a date-of-death appraisal is worth obtaining early.

Does Florida charge an inheritance tax on an inherited house?

No. Florida has no inheritance tax and no operative estate tax — Article VII, section 5(a) of the Florida Constitution caps any such tax at the federal credit, which no longer exists, so no Florida estate tax has been owed for anyone who died after December 31, 2004.

How long after someone dies can you sell their house in Florida?

There is no waiting period, but there is a sequencing problem: while the estate is open the personal representative controls non-homestead property under section 733.607(1), and a separate partition suit is likely to be stayed. Protected homestead is different because it passes outside the estate and is not within the representative’s possession.

Can a half-sibling inherit or contest?

Half-siblings inherit under Florida’s intestacy rules and can be co-owners of the house like anyone else, and an interested person may contest a will subject to strict deadlines. Objections to the validity of a will, the venue or the court’s jurisdiction must be filed within three months after service of the notice of administration on that person under section 733.212(3), and no later than the earlier of final discharge or one year after service.

I was never served with anything. Am I already too late to object?

Not necessarily. The three-month bar in section 733.212(3) runs from service of the notice of administration on you, so a beneficiary who was never served has not started that clock — though the outer limit still applies, and the only ground for extending the three months is estoppel based on a misstatement by the personal representative about the filing period.

What are the most common mistakes when siblings inherit a house together?

Letting insurance lapse, keeping no records of who paid what, signing a deed or settlement before the accounting is run, filing a partition action while the estate is still open, and assuming the person living in the house automatically owes rent. Each of those is expensive and each is avoidable.

When do I need a lawyer, and when can I handle this myself?

If everyone agrees on selling and the estate is straightforward, you may need very little. Get counsel if the property is homestead, if a surviving spouse is within six months of the death, if anyone is living in the house, if the accounting is contested, or if a partition complaint has been served on you — those are the situations where the money moves.

What is the 2 year rule for inherited property?

There is no Florida “2 year rule” for inherited real estate, and the phrase usually confuses two different things. The Florida rule at two years is section 733.710(1), an absolute bar on claims against the decedent two years after death; separately, the federal section 121 exclusion looks at two of the last five years of ownership and use as a principal residence, which is a tax test rather than a probate deadline.

Do I need to notify the IRS about selling inherited property?

You do not file a special notice, but the sale is reported. The closing agent generally issues a Form 1099-S, and each sibling reports their share of the sale on their own return, using the stepped-up basis under Internal Revenue Code section 1014 to compute gain or loss. A CPA should run the numbers before closing, not after.

How do you deal with a greedy sibling when a parent dies?

Separate the emotional question from the legal one, because only the second is actionable. What a court will look at is the deed, the will, who has possession, and who has paid what — so the practical answer is to document everything, put demands in writing, and get an independent valuation rather than argue about fairness.

How do you settle an estate with a difficult sibling?

Usually through a buyout or a mediated sale, because litigation costs both of you a share of two sets of attorney’s fees under section 64.081. Where the estate is still open, a section 733.814 partition inside the probate case keeps everything before one judge and is often faster than a separate suit.

What if a sibling won’t cooperate with the inheritance at all?

You do not need their cooperation. A partition action can proceed against a co-owner who refuses to participate, and if a served cotenant never appears, section 64.207(7) provides a mechanism in heirs property cases for dealing with a nonappearing defendant’s interest.

Can I sell my house without the co-owner’s agreement?

You can sell your own undivided interest without anyone’s consent, but you cannot convey the whole property alone. To sell the entire house over a co-owner’s objection you need either their signature or a partition judgment.

What happens if a co-owner refuses to pay the mortgage?

You should generally pay it rather than let it go into default, because the payment is creditable against their share of the proceeds. A cotenant who pays more than their proportionate share is entitled to a credit at the accounting — McFall v. Trubey — though that credit is exposed to the rental-value offset if you are also living there.

Do I need a partition attorney, or can I file a partition lawsuit myself?

You can file, but the pleading requirements in section 64.041 and the necessary-party rule in section 64.031 are where self-represented cases fail: a judgment that omits an owner does not bind that owner, which can unwind the sale years later. Given that section 64.081 may apportion a share of your fees to the other co-owners, the economics of counsel in a partition case are unusual and worth discussing before you file.

What are the filing fees for a partition action in Florida?

A partition action is a circuit civil case, so the clerk’s filing fee is set by the county and is modest relative to the rest of the cost. The real expense is the appraisal, the commissioners, service on every interested party, and attorney’s fees — which is why we quote from the file rather than from a schedule.

Can I get an estate loan to buy out my siblings?

Yes — probate and estate lending exists precisely for this, and so does a conventional cash-out refinance once title is clear in your name. The complication is timing: a lender will want title vested in the borrower, which usually means waiting for distribution or coordinating the closing with the probate file.

What does a partition sale actually look like?

Under section 64.071 it is a public auction to the highest bidder, with at least one-third of the purchase money paid down unless all parties consent otherwise, and no conveyance until the court confirms the sale. In an heirs property case section 64.210 replaces that with an open-market sale through a licensed Florida broker at no less than the appraised value — which usually produces a materially better price.

Does it matter whether we are in Miami-Dade, Broward, Orlando or Tampa?

The statutes are statewide, so the substantive law is the same in every county. What varies is local practice — how quickly a division sets hearings, whether the circuit routinely orders mediation, and which appraisers and commissioners the court is accustomed to appointing.

Talk to a Florida Probate and Partition Action Attorney

We at Lorenzo Law handle inherited-property disputes, partition actions and probate litigation from our offices in Coral Gables and Fort Lauderdale, and we take these matters throughout Florida — Miami-Dade, Broward and Palm Beach counties, the Orlando and Orange County area, Tampa and Pinellas, Jacksonville, Fort Myers and the surrounding counties.

Whether you are the sibling trying to sell, the co-owner who wants to keep the family home, the executor caught between beneficiaries who will not agree, or the one who has been paying the bills and living there, the same three questions decide your position: how the property is titled, where it sits in the probate process, and what the accounting shows. We can answer all three from the deed, the will and your records.

Call (305) 224-6811 or contact us to discuss your situation.

Jose M. Lorenzo, Jr., Esquire — Florida Bar No. 107002. Lorenzo Law, Coral Gables and Fort Lauderdale, Florida. Practice focused on probate, probate litigation, estate planning, guardianship and Florida homestead law.