Article: Dismissed at Death: Reassessing The Intersection of Joint Tenants’ Rights of Survivorship and Partition at Death In Battle v. Howard

In 2022, the Massachusetts Supreme Judicial Court issued the most recent in a long line of cases, Battle v. Howard, addressing a seemingly simple property law question: what happens when a joint tenant sues for partition and then dies? Through the right of survivorship, all joint tenants have a right to their co-owners’ share in the property at death. And through the right to partition, joint tenants can unilaterally sue to terminate a joint tenancy and prevent the right of survivorship from taking effect. But when a joint tenant sues for partition and dies before the partition suit is complete, the right of survivorship and the right to partition inherently conflict. Battle, like most cases in the past half-century, resolved this conflict by holding that the partition must be dismissed because the right of survivorship takes precedent at a joint tenant’s death. That result, however, is inherently at odds with centuries of legal history. Although at common law partition actions ended with the death of any party, many jurisdictions have long amended this rule by statute. England was the first to do so as early as 1696 with the Partition Act, which required that no partition could “abate” (i.e., be dismissed) because of “the death of any joint tenant.” Today, many U.S. states still maintain similar statutory modifications. Massachusetts is among them, but Battle, like some cases before it, declined to recognize this longstanding statutory change to the common law rule that a partition ends with a party’s death. The 1696 Act and its progeny have been all but forgotten in American law. In resurrecting this neglected area of real property law, this Article will impart a historically informed understanding of the impact of a joint tenant’s death on the right to partition and offer a revived interpretation of the many statutes, derived from the 1696 English antecedent, that expressly allow a partition action to survive a parties’ death. In so doing, this Article will first survey the decision in Battle and analogous decisions from other jurisdictions. It will then draw from centuries of Anglo-American legal history, from fourteenth century case law to Blackstone’s Commentaries, to deconstruct the intersection between the common law right of survivorship and statutory right to partition. Lastly, it will revisit the case law in light of this history to offer a new approach for courts and practitioners when reckoning with a partition action that coincides with death. In all, this unexplored area of legal history will provide relevant insights to a property law issue whose proper, historically grounded resolution has eluded courts and scholars for decades.