Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.


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Brooks v. Allen – Challenged “Divorce-Like” Partition of Real Estate Upheld

Ralph Holmes

Although the NH Supreme Court’s decision in Brooks v. Allen does not establish new law, it is important precedent for the resolution of property division disputes between  domestic partners.  Renee Brooks and Steven Allen had lived as a family for twenty years and had a son.  They owned jointly property in Northwood and Allen was the sole title owner of property in Atkinson.  Following separation, Brooks filed a partition action in Superior Court (Probate Court also had jurisdiction), asking the Court to compel a partition sale of the jointly owned Northwood property and to determine the parties’ equitable interests in the Atkinson property titled in Allen’s name only.   At trial, Judge Wageling found:

the parties intended their purchasing and maintaining of real estate to be for the benefit of both, as a partnership – that is, as domestic partners. The parties’ relationship was not of short duration, nor was it one based solely on economic convenience as evidenced by their manner of living as a family. The Court finds that both parties contributed their respective resources to the domestic partnership throughout the course of the relationship. The Court further finds that [the respondent] was able to contribute more financial and physical resources than [the petitioner] and that his contribution was more consistent than [the petitioner’s]. For this reason, the Court will not award a 50-50 split of the property/interest in the property subject to the partition action, but in general terms hereby orders a 60-40 split with [the respondent] receiving the larger share.

Thus, the Court found that Allen and Brooks through their domestic partnership established equitable rights and interests in the properties such that the appropriate division between them was a 60/40 split.

On appeal, Allen argued that the Superior Court was impermissibly imposing a “divorce-like” property settlement.  The Supreme Court disagreed and found that the Court was simply exercising its authority under the partition statute, RSA 547-C:10 to grant relief to “[a]ny person owning a present undivided legal or equitable interest in real or personal property.”   The case illustrates the importance of partition as a remedy for domestic partners.