Three Keys and No Agreement
When Rosario Mendez died in November 2022, she left behind a paid-off house in Plano, a modest savings account, and no will. Her three adult children — Lucia, forty-nine, a physical therapist in Frisco; David, forty-five, a contractor living in Denton; and Miguel, forty-one, who had moved back in with his mother the year before she died — each inherited a one-third interest in the Plano home under Texas intestacy law. None of them had wanted to think about what would happen after she was gone.
For eight months, the house sat. Lucia drove by it sometimes and thought about the equity. The Collin County market had been strong; comparable homes in the neighborhood were listing near $420,000. Her third of that, after expenses, would be close to $120,000. She had two kids in college. She wanted to sell.
David was indifferent. He had his own mortgage in Denton and no particular attachment to the Plano house. A sale would work for him.
Miguel was not moving. He had been there for two years, had been his mother's caregiver in her final months, and considered the house his home. He was not interested in a buyout at any price. When Lucia and David pushed, he stopped returning their calls.
In the fall of 2023, Lucia retained an attorney and filed a partition suit in Collin County District Court. What she expected was a quick path to a court-ordered sale. What she received was a legal education about a Texas statute that had been on the books for two years — one that nobody in her family had heard of.
The Fundamental Tension in Co-Owned Property
Every co-owner of real property faces a version of the same dilemma. Under Texas law, multiple owners of the same parcel are co-tenants, and each holds an undivided interest — meaning they each have a claim to the entire property, not a specific physical portion of it. There are no walls separating their interests. Miguel did not own the bedrooms in the back. Lucia did not own the kitchen. They each owned one-third of everything, simultaneously and inseparably.
This creates a structural problem that property law has wrestled with for centuries: what happens when co-tenants disagree? Requiring unanimous consent for every decision gives any single co-tenant veto power over the majority. Permitting any co-tenant to force a sale at any time strips those with legitimate reasons to stay of any meaningful protection. Neither extreme works as a universal rule.
Texas, like every other state, resolves this tension through partition — a legal proceeding that can either divide the property physically or order its sale and distribute the proceeds. But partition law is not fixed, and what Lucia found when she filed in 2023 was substantially different from what she would have encountered just two years earlier.
The Old Rule: Partition as an Almost Unconditional Right
For most of Texas legal history, partition was treated as a near-absolute right of property ownership. Texas Property Code § 23.001 states that any owner of an undivided interest in real property may file suit in a district court to compel partition. The statute was designed to prevent co-tenants from being trapped permanently in arrangements they did not choose. Courts interpreted it broadly: if you owned an interest and wanted out, a judge would find a way to give it to you.
The typical outcome in contested residential cases was partition by sale. Courts would order the property listed with a real estate broker, sold at fair market value, and the net proceeds divided among co-tenants in proportion to their ownership shares. Partition in kind — physically dividing the land into separate parcels and deeding each portion to a different co-tenant — was theoretically available but almost never ordered for single-family homes in suburban DFW. A house cannot be meaningfully split in two. So a partition suit meant one thing for most Texas families: the home would be sold, whether the other co-owners agreed or not.
The old rule had a brutal logic. It protected liquidity rights. It prevented any co-tenant from holding the others captive indefinitely. And it recognized that property should not sit idle and deteriorate while its owners quarreled. What it did not address was the distinctive problem of heirs property — homes that families had lived in for years or decades, held now in undivided fractional interests, suddenly at risk of being ripped away by a single co-tenant's financial pressure or family grievance.
The 2021 Change Most Texas Families Have Never Heard Of
On September 1, 2021, Texas joined more than twenty states in adopting the Uniform Partition of Heirs Property Act, codified in Texas Property Code Chapter 23A. The legislature's purpose was precise: to address the inequities that arose when partition suits forced the sale of inherited family homes, often at below-market prices, in communities where estate planning had historically been inaccessible or unaffordable.
The law applies to what it defines as "heirs property" — real property held in tenancy in common where at least one co-tenant acquired their interest through inheritance, whether by will, intestacy, or other family transfer, and where the co-tenants do not have a recorded partition agreement governing the property. For a house like Rosario Mendez's in Plano — acquired by three children through intestacy after their mother died without a will — the statute applied directly.
The most significant change Chapter 23A introduced is the co-tenant buyout right. Under Texas Property Code § 23A.004, once a co-tenant files a partition action on heirs property, the remaining co-tenants have the right to purchase the filing co-tenant's interest at its appraised fair market value — before the court can order any sale of the property. The co-tenant seeking liquidity gets exactly what they wanted: cash at appraised value. The co-tenants who want to keep the property get that chance. Nobody is forced to surrender a family home to a stranger because one sibling needed money quickly.
How the Buyout Process Works
The mechanics of a Chapter 23A partition case unfold in stages that differ substantially from traditional partition proceedings.
First, the court determines whether the property qualifies as heirs property under the statutory definition. If it does, the court notifies all co-tenants, explains the buyout option, and — if any co-tenant requests it — appoints a disinterested real property appraiser to establish fair market value. Under Texas Property Code § 23A.005, the court-appointed appraiser's determination becomes the baseline for the buyout price. This matters: it removes the haggling. Nobody has to agree on value. A neutral professional establishes it.
Once the appraisal is complete, the non-petitioning co-tenants have 45 days to notify the court whether they elect to purchase the petitioner's ownership interest at that appraised value. Under Texas Property Code § 23A.006, if multiple co-tenants wish to exercise the buyout right, they may do so in proportion to their existing shares — meaning the co-tenants who want to keep the property can, together, buy out the one who wants to sell, even if no single co-tenant could finance the full purchase alone.
If the buyout is exercised and payment is made, the partition case ends. The petitioning co-tenant receives the appraised value of their interest in cash, and the property remains with the others, title clear. If no co-tenant elects to buy within the 45-day window, the court proceeds toward partition — but even then, Chapter 23A requires the court to consider whether partition in kind is feasible before ordering a sale, and to weigh factors including the longstanding family relationship to the property, the sentimental or cultural significance of the home, and the economic impact on any co-tenant who has been living there.
When Partition by Sale Still Happens
Questions about real estate? A WG Law attorney can walk you through your options.
The buyout right is a meaningful protection, but not an absolute guarantee that a family home will never be sold. Three scenarios still lead to court-ordered sales even under Chapter 23A.
No co-tenant can afford the buyout. If the remaining co-tenants want to keep the property but cannot finance the purchase of the petitioner's share at appraised value, the buyout right expires unused. The court then proceeds toward partition. Under Texas Property Code § 23A.009, courts evaluating heirs property must give preference to partition in kind over sale whenever physical division would not cause material injury. For most suburban single-family homes, physical division is not feasible, and the court ultimately orders a sale.
The property does not qualify as heirs property. Chapter 23A has a specific definition of heirs property that requires the co-tenancy to have arisen through inheritance. If co-ownership arose from a purchase transaction — two unrelated parties buying a house together, for instance — Chapter 23A does not apply, and the traditional Chapter 23 rules govern. There is no automatic buyout right. The co-tenant filing for partition can proceed directly toward a sale order.
The partition petition was filed before September 1, 2021. Chapter 23A does not apply retroactively to partition suits commenced before its effective date. Families navigating partition disputes that began under the old law may find themselves in a fundamentally different legal landscape than those whose disputes arise today.
What the Statute Cannot Fix
Chapter 23A cannot make family conflict painless. A partition suit — even one that ends in a buyout rather than a forced sale — is litigation. It involves attorney fees for all parties, a formal court-supervised appraisal process, and months of legal proceedings during which co-tenants are simultaneously adversaries and co-owners of a piece of property they share. The family relationships that survive partition suits are usually changed. The ones that do not survive are sometimes permanently fractured.
What Chapter 23A also cannot do is reach the root cause of heirs property disputes. The partition problem only arises when multiple people inherit undivided interests in the same piece of real estate — which is precisely what happens when someone dies without a will and Texas intestacy law divides the estate among children. A house held in a revocable living trust does not create a co-tenancy. There is a trustee with defined authority, and the trust document specifies what happens to the property after the grantor's death. A house transferred through a Lady Bird Deed or a Transfer on Death Deed passes directly to the named beneficiary — one person, with clear title, no co-tenants, and no basis for a partition suit. The Mendez family's eleven months of litigation, thousands of dollars in attorney fees, and permanently strained relationships all trace back to one root cause: Rosario died without a will.
Back to Plano
Miguel Mendez elected to exercise his buyout right. After the court-appointed appraiser valued the Plano house at $414,000, Lucia's one-third interest was worth approximately $138,000. Miguel, who had by then moved to a rental in Garland, arranged a home equity loan against another property he owned and tendered the payment within the 45-day window. David, recognizing that the partition proceeding had established a clear appraised value, sold his own one-third interest to Miguel under a separate agreement negotiated the same week.
Miguel is now the sole owner of the Plano house. He leases it to a family from Allen and uses the rent to service his home equity loan. Lucia received the cash she needed. David received his share. The outcome was financially fair to everyone.
The process took eleven months and cost each sibling several thousand dollars in attorney fees. The outcome was also exactly what competent estate planning would have prevented. If Rosario Mendez had executed a simple will leaving the house outright to Miguel, there would have been no co-tenancy and no partition suit. If she had executed a Lady Bird Deed naming Miguel as beneficiary, the house would have transferred to him the day she died without a probate filing or a partition proceeding. The three children spent more on litigation than they would have spent on years of estate planning services.
What to Do If You're in a Co-Ownership Dispute — or Want to Prevent One
If you have inherited a property with siblings or other co-heirs and cannot reach agreement, your options depend on the specific facts of your situation — particularly whether Chapter 23A applies and whether any co-tenant is prepared to finance a buyout at appraised value.
- If you want to sell your interest and the others won't agree: A partition petition may trigger the Chapter 23A buyout process, giving other co-owners 45 days to purchase your share at appraised value. If they cannot or will not buy, the court retains authority to order a sale — but the process is longer and more structured than the old law required.
- If you want to keep the property and another co-owner is threatening partition: Understanding your buyout right under § 23A.006 — and whether you can finance the purchase — is the first conversation to have with a real estate attorney. The 45-day election window is a hard deadline. Missing it forfeits the right.
- If you own property and want to ensure your children don't face this: The solution is in your estate plan, not in partition litigation. A properly drafted Lady Bird Deed, Transfer on Death Deed, or revocable living trust can pass real property to a named beneficiary — or to multiple beneficiaries with pre-agreed terms — without creating the undivided co-tenancy that makes partition suits possible.
Stephan D. Hwang is a WG Law attorney with title experience since 2003 and real estate litigation experience since 2007, admitted to practice in the U.S. District Courts for the Northern and Eastern Districts of Texas and their Bankruptcy Courts. He has argued before the Fifth District Court of Appeals in Dallas and handles real estate partition disputes, title matters, and co-ownership conflicts throughout the DFW metroplex. Taylor Willingham and the WG Law estate planning team help families structure property ownership to prevent partition disputes before they start. If you are navigating a co-ownership conflict or want to protect your real property through proper estate planning, call 214-250-4407 or contact WG Law to request a consultation.
For related reading, see our guides on Lady Bird Deeds vs. Transfer on Death Deeds in Texas, the Texas Affidavit of Heirship for intestate property transfers, and how Texas handles real estate disputes between neighbors. To learn more about WG Law's real estate legal services, visit our real estate practice area page.
This article is for general informational purposes only and does not constitute legal advice. Texas partition law and the application of Chapter 23A depend on the specific circumstances of your co-ownership situation, including how title was acquired, the relationship among co-tenants, and the nature of the property. Nothing in this article creates an attorney-client relationship. Consult a licensed Texas real estate attorney for guidance specific to your situation.