Alabama Heirs Property: The 30-Day Buyout, Absent Cotenants, and Upkeep as a Court Factor

Alabama and Texas both adopted the Uniform Partition of Heirs Property Act, and the definition of heirs property is word-for-word the same in each. Everything after the definition is not. Alabama runs a shorter clock, demands the election be made in the pleadings, builds in machinery for heirs nobody can find, and counts physical upkeep where Texas counts only money. If you administer in both, the differences are the page.

The Definition Is the Uniform One

Section 35-6A-1 provides that the chapter may be cited as the Alabama Uniform Partition of Heirs Property Act, added by Act 2014-299. Section 35-6A-2(5) defines heirs property as real property held in tenancy in common satisfying all of three requirements as of the filing of a partition action: no agreement in a record binding all the cotenants governing partition; one or more cotenants acquired title from a relative, living or deceased; and any of three thresholds — 20 percent or more of the interests held by cotenants who are relatives, 20 percent or more held by an individual who acquired title from a relative, or 20 percent or more of the cotenants being relatives.

That is the same test Texas applies, and in substantially the same words. Note only that Alabama writes heirs property without the apostrophe Texas uses, which matters when searching rather than when arguing.

The Election Happens in the Pleadings

Alabama front-loads the question of who wants a sale, and penalises silence. Section 35-6A-7(a): in each petitioner's initial pleading the petitioner shall state whether partition by sale is requested, and a petitioner who fails to state it is deemed not to have requested it. Section 35-6A-7(b) imposes the same requirement on each cotenant's initial responsive pleading, with the same default.

The practical effect is that a cotenant who files a response without addressing the point has, by operation of the statute, opted out of requesting a sale — and therefore remains eligible to buy out those who did request one. A cotenant who wanted a sale and did not say so has lost that position at the pleading stage.

Heirs Nobody Can Find

This is where Alabama's version earns its length, and it addresses the defining problem of heirs property: after two or three generations, some cotenants are unknown, unlocatable, or simply never respond.

• A cotenant named as a defendant and served with the complaint who does not appear is deemed not to have requested partition by sale — Section 35-6A-7(c)
• But within 14 days of the court's notice, any cotenant entitled to buy may request the court to authorise the sale of the interests of such non-appearing cotenants — Section 35-6A-7(c)(1)
• The court, after a hearing, may deny that request or authorise the sale of any or all such interests — Section 35-6A-7(c)(2)
• Where the court approves, that non-appearing cotenant is deemed to have requested partition by sale and is treated as such for all purposes under the section — Section 35-6A-7(c)(3)
• A guardian ad litem appointed for unknown, unlocatable or legally incapacitated cotenants may, but need not, state whether partition by sale is requested, and has no liability for making or failing to make the election — Section 35-6A-7(b)(2)

Read together, those provisions give the parties who are present a route to resolve interests held by parties who are not, under the court's supervision and on a short clock. They also mean that an absent heir's interest can end up in the sale pool by court order rather than by their own choice.

Thirty Days, Then Sixty

Where any cotenant has requested partition by sale, Section 35-6A-7(e) runs the buyout. After the determination of value under Section 35-6A-6, the court notifies the parties that any cotenant except one who requested the sale may buy all the interests of those who did.

• Election: not later than 30 days after the notice is sent — shorter than the 45 days Texas allows
• Price: the value of the entire parcel determined under Section 35-6A-6, multiplied by the selling cotenant's fractional ownership of the entire parcel
• Multiple electing cotenants: the court allocates the right to buy in proportion to each electing cotenant's existing fractional ownership
• Payment: the court sets a date not sooner than 60 days after the end of the election period, by which electing cotenants must pay their apportioned price into court
• If all pay, the court reallocates the interests, disburses the funds and dismisses the action without prejudice

Thirty days is not long to value a position, arrange funds and notify a court. For a family spread across several states — which is the usual shape of an heirs property case — the clock starts on the court's notice, not on the family's readiness.

Upkeep Is Expressly a Factor

If the interests are not bought out, Section 35-6A-8 and Section 35-6A-9 govern whether the property is divided or sold. Section 35-6A-9(a) requires the court, in deciding whether partition in kind would result in great prejudice to the cotenants — Alabama's phrase; Texas says substantial prejudice — to consider a list of factors. The sixth is the one worth reading closely.

The court must consider "the degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property."

Texas's equivalent factor stops at the financial contribution. Alabama adds a second limb covering the physical improvement, maintenance or upkeep itself. In the common case — one relative who has cut the grass, patched the roof and kept the house standing for a decade while others contributed nothing — Alabama counts that work directly, and the evidence for it is dated photographs, invoices and a continuous record rather than family memory. Section 35-6A-9(a)(7) adds any other relevant factor, and Section 35-6A-9(b) prevents the court treating any single factor as dispositive without weighing the totality.

And If Nobody Wants a Sale

Section 35-6A-7(d) handles the case where no cotenant, petitioner included, has requested partition by sale. The court determines whether the property can be partitioned in kind under Section 35-6A-8 and Section 35-6A-9, and if it determines it cannot be, the court dismisses the action without prejudice. The deadlock survives the lawsuit — which is worth knowing before filing one.

For the Texas provisions and how they differ, see Texas heirs' property.