Blog By: Ben Bertram
After a long legal battle resulting in his inability to secure legal title to the Sinking Spring farm near Hodgen’s Mill, Thomas Lincoln decided to move his family, including young Abraham Lincoln, to Knob Creek.[i] Later in his life, Abraham Lincoln recounted that his father left Kentucky “chiefly on account of the difficulty of land titles . . . .”[ii] Centuries after Lincoln’s departure from Kentucky, complications from clouded titles persist for heirs inheriting property through intestacy: unless heirs update the title in the appropriate county office, the land remains titled in the name of a deceased ascendent.[iii] Real property ownership interests transferred through intestacy creates a tenancy in common upon what is colloquially referred to as “heirs’ property.”[iv] The problems flowing from an unsecure title are both practical (inability to prove ownership precluding USDA grants and loans, commercial activities) and technical (vulnerability to unscrupulous speculators and developers who act without regard to cotenant interests).[v] Scaling across generations, ownership becomes increasingly fragmented as a larger number of descendants acquire smaller interests—creating unstable ownership in which each cotenant retains an unfettered right to request partition of the entire property.[vi] Powerful partition rights have led speculators to purchase small interests in family-owned tenancies in common for the sole purpose of seeking partition by sale, in which the speculator submits the winning bid for the entire property despite consideration representing just a fraction of the market value.[vii]
In Kentucky, partition is an equitable action among two or more joint owners—including tenants in common—governed by statutory guidelines and the traditional jurisdiction of equity courts.[viii] Kentucky law presumes that real property cannot be equitably divided unless a party shows that partition in kind is possible without materially impairing the value of any interest therein.[ix] If the presumption of indivisibility is not adequately rebutted, the property is subject to a courthouse sale with the net proceeds divided according to the various interests therein.[x] This result is at odds with research indicating that Kentucky property-owners are especially reluctant to part with ancestral land ownership.[xi] In parts of Appalachia, issues relating to heirs’ property have been hypothesized to be correlated with the persistence of poverty.[xii] Furthermore, legal scholarship has highlighted partition sales as a leading cause of African American land loss.[xiii] Security of heirs’ property is also crucial for Kentucky farmers hoping to avoid fragmentation of farmland.
To address these concerns, the Uniform Law Commission in 2010 promulgated the Uniform Partition of Heirs Property Act (“UPHPA”).[xiv] The proposal has three key provisions which operate to “import core property preservation and wealth protection mechanisms already commonly used by wealthy and legally sophisticated family real property owners.”[xv]
First, upon request for partition by a cotenant, the court will determine the fair market value of the property through an appraisal by a disinterested real estate appraiser assuming sole ownership in fee simple.[xvi] If the court later orders a sale of heirs’ property, the sale must be an open-market sale instead of a sale by auction.[xvii] While Kentucky already subjects all property sold under an order or judgment of the court to appraisal,[xviii] there is no mechanism to ensure the sale price reflects the fair market value.[xix] Ensuring a fair market value is especially critical for farmland subject to agricultural assessment, where assessed values often fall well below market price.[xx]
Second, if any cotenant requests partition by sale, any other cotenant may buy the interests of the petitioning cotenants in accordance with the appraisal of fair market value.[xxi] This “buyout of interests” promotes judicial economy, encourages consolidation of ownership, and mirrors the mechanisms already present in many existing private tenancy in common agreements.[xxii] Further, it allows owners who no longer desire to participate in ownership to exit without divesting owners who affirmatively indicate a preference for continuing ownership.[xxiii]
Third, in determining prejudice to cotenants through partition in kind, courts must consider the totality of economic and noneconomic factors, including sentimental value resulting from ancestral ownership.[xxiv] While current law directs courts to consider any material impairment to property value,[xxv] courts have been inconsistent and unclear in the connection between “value” and intangible factors such as ascendant possession.[xxvi] The added language promotes consistency and flexibility for courts to consider a more practical application of prejudice among affected parties.
Without the UPHPA, a forced sale of property below market value deprives property owners of ancestral property and associated wealth—placing heirs’ property as an attractive target for speculators to buy a small share and file for partition.[xxvii] Implementation of the UPHPA, however, may increase the time and cost involved in partition actions—especially problematic for property owners unable to afford legal advice or genealogical research—despite the drafters’ goal to furnish economically disadvantaged individuals with these enhanced protections.[xxviii] Nonetheless, the drafters maintain that the UPHPA helps families preserve wealth, remains narrowly focused to the small percentage of actions in which it is applicable, and preserves the independent right to contract.[xxix]
Many heirs’ property owners experience a false sense of security because they pay property taxes, live on the land, and make productive use of the land; some believe their property may only be sold against their will if a majority or more cotenants agree.[xxx] Despite concerns, legislation offering the UPHPA in Kentucky has died in committee on multiple occasions.[xxxi] In order to alleviate the pressures placed on heirs’ property owners resulting from decades of fragmentation of ancestral property and unscrupulous speculators, it is paramount that Kentucky align with the 26 other states who have codified the UPHPA. The modest procedural adjustments are outweighed by the potential to protect family farms and preserve rural land ownership. Enactment would represent continued progress in counteracting centuries of extractive property practices and a history of weak land registration systems.[xxxii]
[i] The Lincolns Leave Kentucky, Ky. Hist. Soc’y: Ky.’s Abraham Lincoln, https://apps.legislature.ky.gov/LegislativeMoments/moments08RS/11_web_leg_moments.htm (last visited Nov. 2, 2025) [https://perma.cc/W7EQ-V72P].
[ii] Id.
[iii] Francine Miller, Heirs’ Property: Understanding the Legal Issues in Kentucky, Ctr. for Agric. & Food Sys. (Mar. 2024), https://farmlandaccess.org/wp-content/uploads/2024/04/heirs-property-fact-sheet-ky-2024.pdf [https://perma.cc/ZHA3-G49B].
[iv] Id.
[v] Id.
[vi] Unif. Partition of Heirs Prop. Act, Prefatory Note (Unif. L. Comm’n 2010).
[vii] Id.
[viii] Hardin v. Brewer, No. 2018-CA-000421-MR, at 11 (Ky. Ct. App. Nov. 15, 2019).
[ix] Ky. Rev. Stat. Ann. § 389A.030(3) (LexisNexis 2025); see also Roberts v. Roberts, 67 S.W.3d 605, 606 (Ky. Ct. App. 2001).
[x] Id.
[xi] Examining the Efficacy of the Uniform Partition of Heirs’ Property Act in Georgia and Alabama and Its Relevance to Kentucky, Livelihoods Knowledge Exch. Network: Appalachian Heirs’ Prop. Ctr., https://srdc.msstate.edu/sites/default/files/2024-10/2024_Johnson_Gaither_Taylor_White_Final.pdf (last visited Nov. 2, 2025) [https://perma.cc/J5QF-7QAK].
[xii] Unif. L. Comm’n, supra note vi.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] See Id. at § 6(a)-(d).
[xvii] Id. at § 10(a).
[xviii] Ky. Rev. Stat. Ann. § 426.520 (LexisNexis 2025); but see Green v. Thomson, 181 S.W. 662 (Ky. 1916) (holding section does not apply to sale of indivisible land and partition of proceeds (decided under prior law)).
[xix] See Ky. Rev. Stat. Ann. §§ 399A.030; 381.135 (Lexis Nexis 2025).
[xx] See Ky. Rev. Stat. Ann. § 132.450 (LexisNexis 2025).
[xxi] Unif. L. Comm’n, supra note vi, at § 7(a).
[xxii] Id. at § 7 cmt. 1.
[xxiii] Id. at § 7 cmt. 3.
[xxiv] Id. at § 9(a)(4).
[xxv] Ky. Rev. Stat. Ann. § 389A.030(3) (LexisNexis 2025).
[xxvi] Kentucky courts have not openly embraced consideration of sentimental value despite persuasive cases in other jurisdictions. Compare Napier v. Napier, 25 S.W.2d 735 (Ky. 1930) (because division into eleven lots would make the tracts less likely to sell at a fair price, division would materially impair value (decided under prior law)), and Traynor v. Traynor, 333 S.W.2d 943 (Ky. 1960) (tract was indivisible due to inequitable supply of water between tracts (decided under prior law)), and Whitefort v. Barron, 165 S.W.2d 545 (Ky. 1942) (court should consider equality of value and quantity of value when considering division (decided under prior law)), with Schnell v. Schnell, 346 N.W.2d 713, 716 (N.D. 1984) (“Sentimental reasons, particularly in the preservation of a home, may also be considered, although they are subordinate to the pecuniary interests of the parties.”).
[xxvii] Jane Sternecky, The Uniform Partition of Heirs Property Act, Unif. L. Comm’n, https://apps.legislature.ky.gov/CommitteeDocuments/8/35621/4.%20Uniform%20Partition%20of%20Heirs%20Property%20Act%20%28Slide%20Deck%29.pdf (last visited Nov. 2, 2025) [https://perma.cc/98PG-4LSP].
[xxviii] April Simpson, Law helps vulnerable heirs’ property owners—but only if they can afford it, Ctr. for Pub. Integrity (May 1, 2024), https://publicintegrity.org/inequality-poverty-opportunity/law-helps-vulnerable-heirs-property-owners-but-only-if-they-can-afford-it/ [https://perma.cc/CEH8-DFMH].
[xxix] Why Your State Should Adopt the Uniform Partition of Heirs Property Act, Unif. L. Comm’n, https://apps.legislature.ky.gov/CommitteeDocuments/8/35621/4.%20Uniform%20Partition%20of%20Heirs%20Property%20Act.pdf (last visited Nov. 2, 2025) [https://perma.cc/8Y99-CK7D].
[xxx] Unif. L. Comm’n, supra note vi, at Prefatory Note.
[xxxi] See S.B. 70, 2025 Gen. Assemb., Reg. Sess. (Ky. 2025); S.B. 110, 2022 Gen. Assemb., Reg. Sess. (Ky. 2022).
[xxxii] James C. Klotter, Review of Miners, Millhands, and Mountaineers: Industrialization of the Appalachian South, 1880-1930 by Ronald D. Eller, Org. of Am. Historians, https://www.jstor.org/stable/pdf/1890593.pdf?refreqid=fastly-default%3A6b81f797907add3256c462fb9c0202fd&ab_segments=&initiator=&acceptTC=1 (last visited Nov. 2, 2025) [https://perma.cc/L3KE-7UHS].