Filing a Partition Action in Delaware When Co-Owners Won’t Respond

Disclaimer: I am not a lawyer. This explanation is educational only and is not legal advice. For advice about your specific situation, consult a licensed Delaware attorney.

Detailed Answer — How a Delaware partition action works and what to do when owners don’t respond

If you and others inherited real property in Delaware and one or more co-owners refuse to participate, you can usually force a partition through the Delaware courts. A partition action asks the court to divide the property among co-owners (partition in kind) or order the property sold and the proceeds divided (partition by sale). Below are the main steps, the legal framework, and practical tactics to move the case forward even when co-owners won’t respond.

1. Confirm ownership and the nature of the interests

Before filing, gather the deed(s), death certificate(s), probate documents (if any), and any wills or trust documents. Determine how title is held now: most inherited interests end up as tenants in common (separate fractional interests), which allows any co-tenant to seek partition. If title shows joint tenancy with survivorship and the survivorship did not change, the approach may differ.

2. Choose the right court and filing county

In Delaware, partition cases are typically brought in the Superior Court in the county where the property is located. Some equitable issues may involve the Court of Chancery; an attorney can advise which forum best fits your case. See the Delaware Superior Court information here: https://courts.delaware.gov/superior/ and general court rules here: https://courts.delaware.gov/rules/.

3. Prepare the complaint (what to ask the court to do)

Your complaint should name all record and known owners (plaintiff(s) and defendant(s)), describe the property with a legal description, state each party’s claimed interest, and explain that you have attempted to contact the other owners but have been unable to obtain cooperation. Ask the court to:

Order partition in kind if a fair division is practicable;
Order a sale and division of proceeds if partition in kind is impractical;
Appoint a commissioner or referee to perform the physical division or supervise sale;
Resolve liens, encumbrances, and claims of contribution for improvements or costs; and
Permit substituted service or service by publication for unresponsive or unknown owners, if necessary.

4. Serve all parties according to Delaware rules

Service of process is essential. The court will not proceed until the complaint is properly served on each defendant according to Delaware procedure. Reasonable steps include:

Personal service at the defendant’s last known address;
Certified mail with return receipt if allowed by the local rules;
Substituted service (e.g., leaving papers with someone of suitable age at the residence) if permitted by the rules; and
Service by publication when a party’s whereabouts are unknown or they cannot be located after diligent effort.

Delaware’s civil rules and local practice control how and when the court will allow substituted service or publication. See Delaware court rules: https://courts.delaware.gov/rules/ and the Superior Court site for filing procedures: https://courts.delaware.gov/superior/.

5. What to do if co-owners won’t respond

If a co-owner refuses to cooperate or ignores the suit:

The court can proceed against that owner in their absence after proper service. The court may enter default judgments or proceed to determine partition and sale.
If the defendant’s location is unknown, request service by publication. The court often requires an affidavit showing diligent attempts to locate the party before granting publication.
If an owner is incapacitated or a minor, the court may require appointment of a guardian ad litem to represent that owner’s interests.
If an owner is deceased and their interest has not been probated, notify the probate court and identify the estate representative — you may need to join the estate as a party.

6. Partition in kind vs. partition by sale

The court prefers partition in kind if a fair division is practicable without prejudicing owners. If the property cannot be fairly divided (e.g., a single-family lot), the court will order a sale and divide proceeds among owners according to their shares, after accounting for liens and expenses. The court may appoint a commissioner to manage the sale or division.

7. Costs, timeline, and outcomes

Partition lawsuits can take months to years. Expect court filing fees, costs for sheriff or process servers, survey and appraisal fees, and attorney fees if you hire counsel. In some cases, the court can award costs or fees to the prevailing party, but that is case-specific.

8. Alternatives to litigation

Before or while pursuing partition, try these non‑litigation solutions:

Negotiate a buyout where one or more co-owners buy out the others;
Mediation to reach a settlement about sale, division, or management;
Voluntary family agreement to sell and split proceeds outside court.

Relevant Delaware law and resources

Delaware handles probate, real property, and court procedure across several statutes and court rules. Useful official resources include:

Delaware Code, Title 10 (Courts and Judicial Procedure): https://delcode.delaware.gov/title10/
Delaware Code, Title 12 (Decedents’ Estates and Fiduciary Relations — for probate matters): https://delcode.delaware.gov/title12/
Delaware court rules and filing procedures: https://courts.delaware.gov/rules/
Delaware Superior Court (where partition actions are commonly filed): https://courts.delaware.gov/superior/
Delaware State Bar Association directory and lawyer referral: https://www.dsba.org/

Helpful Hints — Practical checklist and tips

Gather documents first: deed(s), death certificates, wills, probate filings, tax bills, mortgage statements, and any written communication with co-owners.
Do a title search or order an abstract to identify all record owners and liens.
Keep a written record of every attempt to contact non‑responding co-owners (dates, methods, addresses, phone calls, emails, certified mail receipts). Courts want proof of diligence before allowing publication service.
Consider a professional appraisal early to support requests for sale and to value buyouts.
Explore mediation first — it is usually quicker and cheaper than litigation and preserves more control for owners.
If you must litigate, be prepared for potential costs beyond filing fees: surveys, appraisals, commissioner fees, brokers’ fees, and attorneys’ fees.
If a co-owner is deceased and no administrator or executor was appointed, consult the probate court to determine who can be joined as a party.
Work with an attorney who handles Delaware real estate, probate, and partition matters — they will ensure proper service, pleadings, and local practice compliance.

Next practical steps

Collect the documents listed above and confirm the property’s county.
Try a written buyout offer or mediation with the co-owners.
If negotiation fails, consult a Delaware attorney about preparing and filing a partition complaint and strategies for serving unresponsive owners.
If you cannot afford an attorney, contact the Delaware State Bar Association for referrals or the court clerk for self-help resources and filing requirements: https://courts.delaware.gov/superior/.

Getting a partition when co-owners won’t cooperate is often possible, but procedure and proof requirements are strict. Proper service and clear documentation of your ownership and attempts to contact others make the process smoother. For a tailored strategy and to protect your rights, speak with a Delaware attorney experienced in real property and probate matters.