How does a partition action work in Kansas when one co-owner has been adjudicated incompetent and has a court‑appointed guardian or conservator?

Short answer: You can still bring a partition action in Kansas. The guardian or conservator appointed for the incompetent co‑owner must be joined or served so the guardian/conservator can protect that person’s property interest. The court handling the partition will coordinate with the guardianship/conservatorship process when necessary, and a sale of the property or judicial division may require approval or accounting to the guardianship/conservatorship court.

Detailed answer — step by step

Below is a plain‑language walkthrough of the typical process in Kansas, with practical points you will likely encounter. This is not legal advice; it is information to help you understand the process and decide whether you should consult a licensed Kansas attorney.

1. Determine the protected person’s legal representative

In Kansas, a court may appoint a guardian (for personal decisions) and/or a conservator (for the estate) for someone adjudicated incompetent. Before filing a partition action, determine whether the person has a court‑appointed conservator (or guardian with authority over property). If only a guardian for the person exists, the guardian may need to seek conservatorship authority to handle property matters.

Useful starting points: Kansas statutes and resources on guardianship and conservatorship are maintained by the Kansas Judicial Branch and Kansas Revisor of Statutes. See general resources at the Kansas Judicial Branch (kscourts.org) and the Revisor of Statutes (ksrevisor.org).

2. Who to name and how to serve process

When you file the partition lawsuit, you must join every person with a recorded legal interest in the property, including the incompetent co‑owner. If a conservator or guardian has been appointed, name and serve that conservator/guardian as the party who represents the protected person’s property interest. If no conservator exists, the court may require appointment of a guardian ad litem or a temporary conservator to represent the incompetent owner’s property interests during the partition case.

3. Filing the partition action

A partition action asks the court either to physically divide the land among co‑owners (partition in kind) or to sell the property and divide the proceeds (partition by sale). Many properties are not susceptible to fair physical division; in those cases Kansas courts commonly order a sale and division of proceeds.

4. Role of the conservator/guardian and guardianship court

The appointed conservator is responsible for protecting the incompetent owner’s financial interests. The conservator will defend the partition action, negotiate sales, or seek court approval for any proposed compromise affecting the protected person. If the protected person’s interest will be sold or encumbered, the conservatorship (or probate) court may need to approve the transaction or the distribution of proceeds so the sale is in the protected person’s best interest.

5. Interim management and receivers

If the property needs management, maintenance, or rent collection while the case proceeds, the partition court can appoint a receiver. The conservator also has authority to manage the protected person’s share of income or to seek appointment of a receiver through either the probate/guardianship court or the partition court, depending on the circumstance.

6. Sale, distribution of proceeds, and court approvals

If the court orders sale, it will direct how the sale is handled (public auction, private sale subject to confirmation, or use of a commissioner). The partition court will determine the respective ownership percentages and order distribution. For the protected person, proceeds typically must be delivered to the conservator and may require approval by the guardianship/conservatorship court before being used for the protected person’s benefit or invested on their behalf.

7. Settlement and compromises

Parties often settle before trial. If a settlement affects the incompetent person’s interest, the conservator must evaluate the settlement. Often the conservatorship court must review and approve any settlement that disposes of or impairs a protected person’s property rights.

8. Practical timeline and costs

Partition actions vary in length: simple uncontested cases may resolve in months; contested cases can take a year or more. Costs include court filing fees, title searches, appraisals, legal fees, receiver or commissioner fees, and possible costs of guardianship/conservatorship accountings and court hearings. The protected person’s share of proceeds may be reduced by reasonable legal and administrative expenses charged against the estate or sale.

What Kansas statutes and courts to consult

Key authorities and resources you can consult:

Kansas statutes and code — searchable at the Kansas Revisor of Statutes.
Kansas Judicial Branch — information on guardianship and conservatorship processes: kscourts.org.
Civil procedure and local rules — your county court’s clerk and local rules will explain filing, service, and notice requirements for partition actions.

Helpful Hints

Confirm whether there is a conservator of the estate (not just a guardian for the person). Property decisions usually require a conservator or specific court approval.
Before filing, obtain a current title report and copies of the recorded deed(s) showing ownership shares.
Identify and notify the conservator/guardian early. Proper service and joinder prevent delays and protect the protected person’s rights.
Expect the guardianship/conservatorship court to want accounting and a record of any sale or settlement affecting the protected person’s assets.
Consider mediation or negotiated buy‑outs when co‑owners can cooperate; such settlements often avoid the time and expense of a full partition hearing and the need for additional guardianship‑court approvals.
If no conservator exists but the co‑owner is incapacitated, ask the court about appointing a guardian ad litem or temporary conservator to ensure the co‑owner’s interests are represented.
Get counsel experienced in both real estate litigation and conservatorship/guardianship matters — coordination between the two courts is common and often necessary.

Example hypothetical (illustrative only)

Three siblings own a house as tenants in common. One sibling was adjudicated incompetent and has a conservator of the estate. A dispute arises, and one sibling files for partition by sale. The petitioner names all co‑owners and serves the conservator for the incompetent sibling. The court orders an appraisal and, because physical division is impractical, sets the matter for sale. The conservator reviews any sale offers and petitions the conservatorship court for approval of the sale terms and distribution of the protected sibling’s share of proceeds. The partition court oversees the sale; proceeds go to the conservator, who must account for their use or deposit under the conservatorship court’s rules.

When to get a lawyer

Consult a Kansas attorney if the case involves an incapacitated co‑owner. You will likely need professional help to: (1) make sure the conservator/guardian is properly named and served; (2) coordinate pleadings and hearings between the partition court and the guardianship/conservatorship court; (3) get required court approvals; and (4) protect the protected person’s property interest while complying with statutory duties.

Disclaimer: This article explains general principles of Kansas law and is not legal advice. Laws change and facts matter. For advice about a specific situation, contact a licensed Kansas attorney who handles partitions and guardianship/conservatorship matters.