Partition is the division of the estate among the heirs, ending the co-ownership and allotting to each their specific share. It may be done by the testator in the will, by the heirs by agreement (extrajudicial), or by the court (judicial). Once the estate is partitioned, an important obligation arises among the co-heirs: a reciprocal warranty. Each co-heir is bound to warrant the others against eviction and against hidden defects or charges in the property allotted to them, in proportion to their shares. This means that if a co-heir is later evicted from the property assigned to them (because a third person had a better right), or the property has a hidden defect, the other co-heirs must indemnify them proportionately for the loss, as if the assets had been unequally divided. There are exceptions: the warranty does not apply if it was expressly excluded in the partition, if the eviction is due to a cause arising after the partition or through the fault of the heir evicted, or if the loss is due to a fortuitous event in some cases. This warranty ensures that the partition is fundamentally fair, so that no heir bears a disproportionate loss from a defect or eviction unknown at the time of division.
What Partition Is
Partition divides the estate among the heirs, ending the co-ownership. It may be by the testator, by the heirs' agreement, or by the court.
The Reciprocal Warranty
After partition, each co-heir warrants the others against eviction and hidden defects in their allotted property, in proportion to their shares.
How It Works and Exceptions
If a co-heir is later evicted or the property has a hidden defect, the others indemnify them proportionately. Exceptions: the warranty is expressly excluded, the cause arose after the partition or through the evicted heir's fault.
Practical Takeaways
- Partition ends the co-ownership and allots specific shares;
- Co-heirs warrant each other against eviction and hidden defects, proportionately;
- The warranty can be excluded and has recognized exceptions.
Frequently Asked Questions
What is partition of an estate? The division of the estate among the heirs, ending the co-ownership and allotting to each their specific share. It may be done by the testator, by the heirs' agreement, or by the court.
What is the warranty among co-heirs? After partition, each co-heir is bound to warrant the others against eviction and against hidden defects in the property allotted to them, in proportion to their shares.
What happens if a co-heir is evicted from their share? The other co-heirs must indemnify them proportionately for the loss, so that no heir bears a disproportionate loss from an eviction or defect unknown at the time of partition.
Are there exceptions to the warranty? Yes. The warranty does not apply if it was expressly excluded, if the eviction arose from a cause after the partition or through the fault of the heir evicted, or in some cases of fortuitous events.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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