Partitioning Estates

A partition action in Minnesota is a court proceeding that allows co-owners of real property — whether joint tenants or tenants in common — to dissolve their shared ownership. The action results in either a physical division of the property among the co-owners (partition in kind) or a forced sale of the property with the proceeds distributed according to each owner’s interest (partition by sale). Minnesota law strongly favors partition in kind over partition by sale; a sale may only be ordered when physical division would cause great prejudice to the owners. The action is governed primarily by Minnesota Statutes Chapter 558 for actions commenced before August 1, 2025, and by the new Minnesota Partition Act, Minn. Stat. §§ 558A.01–.29, for actions commenced on or after that date Minn. Stat. Ann. § 558.01 (West), Minn. Stat. Ann. § 558A.03 (West), Minn. Stat. Ann. § 558A.01 (West).

Nature and Legal Basis of a Partition Action

A partition action is a statutory remedy codified in Minnesota Statutes Chapter 558. Under Minn. Stat. § 558.01, when two or more persons are interested as joint tenants or tenants in common in real property in which one or more of them have an estate of inheritance, for life, or for years, any one of them may bring an action against the others for a partition of the property according to their respective rights and interests, or for a sale of the property if partition cannot be had without great prejudice to the owners Minn. Stat. Ann. § 558.01 (West). Although the action is statutory, Minnesota courts have consistently held that it is governed by equitable principles. As the Minnesota Supreme Court stated in Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955), partition proceedings are governed by equity, and courts are not restricted to the specific methods enumerated in the statute but may exercise general equitable powers to fashion the most advantageous plan for the parties.

The common ownership required to bring a partition action may be based on either legal or equitable title. In Searles v. Searles, 420 N.W.2d 581, 583 (Minn. 1988), the Minnesota Supreme Court held that a co-ownership interest grounded in equitable title — such as a marital property interest — is sufficient to support a partition action, provided the pertinent facts are specially pleaded. However, Searles involved property completely omitted from a dissolution decree that made no mention of real estate, and the continued validity of this approach has been questioned. See Pooley v. Pooley, No. A20-1250, 2021 WL 2910246, at *5 (Minn. Ct. App. July 12, 2021) (noting that after enactment of Minn. Stat. § 518.145 in 1988, relief from omitted marital property requires meeting statutory requirements rather than the Searles approach) Searles v. Searles, 420 N.W.2d 581 (Minn. 1988). A party must generally hold a vested, possessory interest in the property as a cotenant; a contingent or inchoate equitable interest may not be sufficient. In Tollefson Dev., Inc. v. McCarthy, 668 N.W.2d 701 (Minn. Ct. App. 2003), the Court of Appeals held that a developer’s equitable interest under a purchase agreement, which was contingent on fulfilling nine conditions, did not provide a sufficient basis for a partition action.

Before deciding how to partition the property, the court must first determine what there is to partition — that is, it must resolve any title disputes and establish the ownership interests of all parties. Searles v. Searles, 420 N.W.2d at 583 (but see Pooley v. Pooley, No. A20-1250, 2021 WL 2910246 (Minn. Ct. App. July 12, 2021) (questioning other aspects of Searles)) Searles v. Searles, 420 N.W.2d 581 (Minn. 1988). Once ownership is established, the court renders a judgment for partition and proceeds to the method of division Minn. Stat. Ann. § 558.04 (West).

The Partition Process: Procedure and the Role of Referees

Once the court determines that partition is appropriate and establishes the parties’ respective interests, Minn. Stat. § 558.04 requires the court to render a judgment for partition and appoint three disinterested and judicious citizens of the county as referees to carry out the division Minn. Stat. Ann. § 558.04 (West). The referees serve a function analogous to a jury: their report is entitled to the same force and effect as a jury’s verdict or a district court’s finding, and may be set aside only in extreme cases Neumann v. Anderson, 916 N.W.2d 41 (Minn. Ct. App. 2018).

Under Minn. Stat. § 558.06, the referees are charged with dividing the property and allotting the several portions to the respective parties, with quantity and quality considered relatively, according to their respective rights Minn. Stat. Ann. § 558.06 (West). The referees designate the portions by proper landmarks and may employ a surveyor with necessary assistants. They must submit a report describing the property and the share allotted to each party. Upon receiving the report, the court may confirm or set aside the report and, if necessary, appoint new referees Minn. Stat. Ann. § 558.07 (West). Once confirmed, the final judgment is binding on all named parties and their legal representatives, all unknown persons who received notice by publication, and all persons claiming through such parties Minn. Stat. Ann. § 558.07 (West).

Any party may appeal from an order or interlocutory judgment made pursuant to §§ 558.04, 558.07, 558.14, or 558.21 to the Court of Appeals within 30 days of the order’s filing Minn. Stat. Ann. § 558.215 (West). All matters determined by such orders are conclusive and binding unless timely appealed Minn. Stat. Ann. § 558.215 (West).

Partition in Kind

Partition in kind is the physical division of the property held in co-ownership into separate parcels, with each co-owner receiving a parcel corresponding to their proportional interest. For example, a property owned by four co-tenants in equal shares may be divided into four lots of equal size and value Neumann v. Anderson, 916 N.W.2d 41 (Minn. Ct. App. 2018). This is the preferred method of partition under Minnesota law.

Minnesota courts have consistently held that the law favors partition in kind over partition by sale because partition in kind does not force a person to sell his or her private property Beebout v. Beebout, 447 N.W.2d 465 (Minn. Ct. App. 1989), Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955). Until the contrary appears, the presumption prevails that partition in kind should be made Anderson v. Anderson, 560 N.W.2d 729 (Minn. Ct. App. 1997), Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955). The burden of proving that partition in kind cannot be made without great prejudice to the owners falls on the party requesting a sale Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955), Anderson v. Anderson, 560 N.W.2d 729 (Minn. Ct. App. 1997).

When a perfectly equal physical division is not possible, the court may order partition in kind with compensation — sometimes called owelty. Under Minn. Stat. § 558.11, when partition cannot be made equal between the parties without prejudice to the rights or interests of some, the court may adjudge compensation to be made by one party to another for equality of partition Minn. Stat. Ann. § 558.11 (West). In Anderson v. Anderson, 560 N.W.2d 729 (Minn. Ct. App. 1997), the Court of Appeals affirmed a partition in kind of four parcels of farmland with owelty to equalize the division, holding that this method effected an equitable and fair division without requiring appointment of referees.

A further option is partition by set-off under Minn. Stat. § 558.12, which applies when the premises consist of a mill or other tenement that cannot be divided without damage to the owners, or when any specified part is of greater value than either party’s share and cannot be divided without damage. In such cases, the whole premises or the indivisible part may be set off to any party who will accept it, with that party paying the others such sums as the referees award to make the partition just and equal Neumann v. Anderson, 916 N.W.2d 41 (Minn. Ct. App. 2018).

Partition by Sale

Partition by sale is available only when physical division would cause great prejudice to the owners. Under Minn. Stat. § 558.14, if it is alleged in the complaint and established by evidence that the property is so situated that partition cannot be had without great prejudice to the owners, the court may order a sale Minn. Stat. Ann. § 558.14 (West). Alternatively, if referees appointed to make partition in kind report that the property cannot be physically divided without great prejudice, and the court is satisfied that the report is correct, the court may order the referees to sell the property Minn. Stat. Ann. § 558.14 (West).

The term great prejudice has a specific legal meaning in Minnesota. As articulated in Beebout v. Beebout, 447 N.W.2d 465 (Minn. Ct. App. 1989) and Neumann v. Anderson, 916 N.W.2d 41 (Minn. Ct. App. 2018), great prejudice exists where the value of each share if physical partition is made will be materially less than the share of money equivalent that could probably be had on a sale of the whole. The word materially is critical — a mere difference in value is insufficient; the diminution must be substantial Beebout v. Beebout, 447 N.W.2d 465 (Minn. Ct. App. 1989). In Beebout, the Court of Appeals reversed a trial court’s order for partition by sale of 320 acres of farmland, holding that the expert testimony offered to support great prejudice was insufficient because it stated only a general rule without applying it to the specific parcels at issue and did not establish that any devaluation would be material Beebout v. Beebout, 447 N.W.2d 465 (Minn. Ct. App. 1989).

When a sale is ordered, it may be conducted by public auction to the highest bidder for cash, with published notice in the manner required for execution sales Minn. Stat. Ann. § 558.17 (West). The court may also order a private sale if it is in the best interests of the owners; in that case, the property must be appraised by two or more disinterested persons before the sale is confirmed, and no property may be sold at private sale for less than its appraised value Minn. Stat. Ann. § 558.17 (West). The court may order sale for cash, part cash with a purchase money mortgage of up to 50% of the purchase price, or on contract for deed Minn. Stat. Ann. § 558.17 (West). If the sale is confirmed, the court enters a final judgment directing the referees to execute conveyances and directing the application of the proceeds Minn. Stat. Ann. § 558.21 (West).

The Great Prejudice Standard and Factors Courts Consider

In determining whether to order partition in kind or by sale, Minnesota courts consider several factors. The Minnesota Supreme Court in Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955) identified the following relevant considerations: the situation of the parties and their respective financial abilities, the location and character of the property, and the size and utility of the respective shares if a partition in kind were made. Courts also consider whether a specific portion of the property can be set off to one owner in satisfaction of that owner’s share, with the remainder sold — a hybrid approach that combines both methods Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955).

In Neumann v. Anderson, 916 N.W.2d 41 (Minn. Ct. App. 2018), the Court of Appeals reversed a district court’s rejection of a referees’ report that recommended one co-tenant purchase the property from the other two. The referees had found that partition in kind could not be had without great prejudice to the resident co-tenant because her home was located on the property, she had made substantial capital improvements, and she had obtained organic certification for her dairy operation. The court emphasized that the referees’ report was entitled to the same deference as a jury verdict and could be set aside only in extreme cases.

Courts also retain broad equitable power to combine partition methods. In Swogger, the Minnesota Supreme Court held that a court may decree a partial partition in kind by allotting one or more tracts to one owner in satisfaction of that owner’s share, while ordering a sale of the remaining tracts with division of the proceeds among the other owners, where practicable and not prejudicial Swogger v. Taylor, 243 Minn. 458, 68 N.W.2d 376 (1955).

Recent Developments

Minnesota enacted the Minnesota Partition Act, Minn. Stat. §§ 558A.01–.29, effective August 1, 2025 Minn. Stat. Ann. § 558A.03 (West), Minn. Stat. Ann. § 558A.01 (West), Minn. Stat. Ann. § 558A.11 (West). The new Act preserves the fundamental structure of partition law — including the right of any joint tenant or tenant in common to bring a partition action and the preference for partition in kind — but introduces several notable changes.

Most significantly, Minn. Stat. § 558A.11 codifies a multi-factor test for determining whether partition in kind would result in manifest prejudice to the cotenants as a group Minn. Stat. Ann. § 558A.11 (West). The factors courts must consider include: (1) whether the property can practicably be divided; (2) whether the aggregate fair market value of the resulting parcels would be materially less than the value of the property sold as a whole; (3) the collective duration of ownership or possession by a cotenant and relatives who are predecessors in title; (4) a cotenant’s sentimental attachment to the property, including ancestral or unique value; (5) the lawful use being made of the property by a cotenant and the harm that would result from loss of that use; (6) the degree to which cotenants have contributed their pro rata share of taxes, insurance, and maintenance expenses; and (7) any other relevant factor Minn. Stat. Ann. § 558A.11 (West). No single factor is dispositive; the court must weigh the totality of all relevant factors and circumstances Minn. Stat. Ann. § 558A.11 (West).

The new Act also modifies the referee process. Under Minn. Stat. § 558A.10, when a sale is ordered, the referee must sell the property by any means to assure the highest and best price under the most favorable terms Minn. Stat. Ann. § 558A.10 (West). Expenses and fees of the referee are paid by the parties in proportion to their interests, rather than solely by the plaintiff as under the prior statute Minn. Stat. Ann. § 558A.10 (West). The new Act also expressly addresses attorney fees and costs, providing that they may be paid from sale proceeds or apportioned among the parties, with the court considering the conduct and cooperation of the parties and the benefits of the partition Minn. Stat. Ann. § 558A.19 (West).

Related Issues

• Whether a co-owner who has paid more than their proportional share of property taxes, mortgage payments, or improvement costs is entitled to an accounting or credit against other co-owners’ shares before or during partition proceedings
• Whether a co-owner’s right to partition can be waived or restricted by a co-ownership agreement, deed restriction, or other contractual arrangement
• How partition interacts with homestead rights and spousal consent requirements under Minnesota law, particularly when the property subject to partition is a homestead
• How liens, mortgages, and other encumbrances on one co-owner’s undivided interest are treated when the property is partitioned in kind or sold

Commentary on This Question

A partition of real estate is a legal proceeding initiated to divide property among co-owners so that each party receives either a physical portion (partition in kind) or, if division is impracticable or inequitable, a sale of the entire property with proceeds distributed (partition by sale). The preferred method is partition in kind, as it permits co-owners to maintain possession of real property without forced sale. Courts must first ascertain the respective ownership interests before determining partition mode. Partition by sale is authorized only when partition in kind would cause great prejudice, such as materially diminishing the value of individual shares, or when physical division is impractical due to the property’s characteristics, local zoning, or the owner’s interests and circumstances. The burden lies on the party seeking sale to prove that sale better promotes the interests of all owners than physical division would 130 Am. Jur. Trials 95 (Originally published in 2013), 2 Tiffany Real Prop. § 479 (3d ed.), 68 C.J.S. Partition § 119.

In judicial partition actions, courts exercise equitable discretion, weighing factors such as economic value, parcel utility, sentimental attachment, and the practicality of division. Commissioners or referees typically oversee physical partitioning, with court confirmation required. Sales are conducted under court supervision, with possible resale if initial price is unfair. Partition is a right of cotenants, though agreements may limit this right temporarily. Courts aim to provide an equitable solution without conferring advantage or harm, favoring partition in kind unless partition by sale is demonstrably necessary 2 Tiffany Real Prop. § 479 (3d ed.), 2 Tiffany Real Prop. § 474 (3d ed.), 68 C.J.S. Partition § 120.