After a decedent’s death, it may be necessary to partition any realty in which the decedent held an interest as a tenant in common. While the estate may already be before the Surrogate’s Court, the current case law generally holds that the Surrogate does not have jurisdiction over the partition proceeding itself, unless, at the very least, a party can show “extraordinary circumstances.” Therefore, the partition action must be commenced in Supreme Court. Yet the partition action cannot be commenced in Supreme Court until the fiduciary of the estate seeks permission from the Surrogate’s Court. Therefore, oftentimes an estate must hopscotch between two courts just to obtain the desired relief. As such, the current law regarding the Surrogate’s Court’s jurisdiction over partition procedures is an unnecessary procedural quagmire.

A partition proceeding is a legal remedy available to those who usually own property as tenants in common. Common tenancy is often the basic form of property ownership when two or more own real property. In such a relationship, each cotenant has an undivided right to possession of the entire asset, although not to the exclusion of the other owners. But there is no right of survivorship in a common tenancy. Thus, each cotenant may designate in their will who receives his/her interest in the event of death.

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