Heirs Property in the United States

Heirs Property Definition in the Uniform Partition of Heirs
Property Act

In “Reforming Property Law to Address Devastating Land Loss”, its author, Prof. Thomas W. Mitchell, made the following analysis:

“Even prior to the approval of the (Uniform Partition of Heirs Property Act) project, there was broad consensus that any uniform partition act should exempt certain categories of tenancy-in-common property. After the drafting committee formed, however, agreeing on what subset of tenancy-in-common property the (Uniform Partition of Heirs Property) Act would cover proved to be a substantial challenge, perhaps the biggest challenge the drafting committee faced during the three years it existed.

Given the primary goal of stemming involuntary loss of family property, there was broad consensus that the committee should exclude certain types of commercial or investment tenancy-in-common properties from the (Uniform Partition of Heirs Property) Act’s
scope, such as those investors utilize in Internal Revenue Commission § 1031 like-kind exchange transactions.

The ownership of these types of tenancy-in-common property is almost universally subject to an agreement that governs the partition of the property. The definition of “heirs property”
therefore excludes real property held in a tenancy in common in which there is an “agreement in a record binding all the cotenants which governs the partition of the property.”

(…) the (Uniform Partition of Heirs Property) act defines a “relative” as “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 [act].” In applying this definition of relative to particular cases, a transfer of an interest from an ascendant to a descendant, such as from a parent to a child, certainly satisfies the Uniform Partition of Heirs Property Act’s acquisition of title from a relative requirement.

However, in recognizing that property interests are transferred among family members in other ways, both in other intergenerational ways and in ways that involve intragenerational transfers, the Act does not require one of the cotenants to have acquired his or her interest from a family member who was older at the time of the transfer.

Therefore, a transfer from a child to parent would satisfy the requirement as well. Further, a transfer of an ownership interest to one of the current cotenants from that cotenant’s sibling would satisfy the acquisition from a relative requirement, even if the sibling who transferred the ownership interest is or was younger than
the cotenant who acquired the interest.

In addition to the requirement that at least one of the cotenants must have acquired title from a relative, the Act establishes another requirement for tenancy-in-common property to be considered sufficiently familyowned to be heirs property. To this end, if one or more of the cotenants acquired title from a relative, then one of the following criteria must also be
present:

• 20 percent or more of the interests are held by cotenants who are relatives;
• 20 percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
• 20 percent or more of the cotenants are relatives.

Under these family ownership criteria, the Uniform Partition of Heirs Property Act would not apply to “first generation” tenancy-in-common properties first established by volition by the current group of cotenants themselves under the default rules, even if all of the cotenants are related and even if there is no agreement in a record governing the partition of the property. Such a tenancy in common would not qualify as heirs property because none of the cotenants could claim to have acquired title from a relative. In the end, the scope of the Act is broad enough that it would apply to all or nearly all of the types of tenancy-in-common properties that advocates for heirs property owners have been most concerned about for decades.

In the end, the effort to broaden the Uniform Partition of Heirs Property Act in a way that might have expanded the definition of family, or what it means to be related, beyond what a particular state might currently recognize did not succeed. It fell short because a substantial majority of the commissioners believed such an expansion would transform the Act from one that addresses a “relatively discrete issue on a relatively technical question and make it subject to a
much broader debate, which will make it very unlikely in many states that the act would ever be passed.”