Tenants in Common in Illinois: Shares, Partition, and Death

Owning property as tenants in common in Illinois means each co-owner holds a separate, transferable share, can sell or mortgage that share without the others’ consent, and leaves it to their own heirs at death rather than to the surviving co-owners. It is the default form of co-ownership under Illinois law, and it gives owners flexibility that joint tenancy does not, along with real risks around probate, creditors, and forced sales that every co-owner should understand before signing the deed.

How You End Up as Tenants in Common

The Illinois Joint Tenancy Act creates a strong presumption: unless a deed expressly states that property passes “not in tenancy in common but in joint tenancy,” the ownership is a tenancy in common.¹ A deed that simply conveys property “to John Doe and Jane Smith” creates a tenancy in common by operation of law, even if the parties verbally agreed to something different.

Joint tenancy requires the phrase “as joint tenants and not as tenants in common.” Tenancy by the entirety, available only to married spouses for homestead property, requires its own specific declaration under 765 ILCS 1005/1c.² Without one of those magic phrases, the tenancy in common default applies.

One useful feature: ownership percentages do not have to be equal. A deed can allocate 70 percent to one party and 30 percent to another based on financial contributions or any other arrangement the parties choose. If the deed is silent on percentages, Illinois courts generally presume equal shares.

What Each Owner Can Do With Their Share

Every co-tenant has the right to use and occupy the entire property, no matter how small their percentage. A 10 percent owner can walk through the front door just like a 90 percent owner. This “unity of possession” is the one thing all co-tenants share equally, and no owner can lock another out of any portion of the property.

At the same time, each owner’s share is independently theirs. A tenant in common can sell, mortgage, or lease their individual interest at any time without permission from the others. This independence is what most sharply distinguishes tenancy in common from joint tenancy.

The practical market for an undivided fractional interest is small, though. Most buyers do not want to purchase a percentage share that comes with co-ownership headaches, so these interests typically sell at a significant discount. A 50 percent interest in a $400,000 property will almost never fetch $200,000 on the open market.

There is also a lender trap. If a mortgage exists on the property, transferring a co-tenant’s interest can trigger the due-on-sale clause, letting the lender demand immediate repayment of the entire loan balance. Federal law under the Garn-St Germain Act protects certain transfers, including transfers on death, transfers to a spouse or children, and transfers into some living trusts.³ A voluntary sale of a tenancy in common interest to an unrelated buyer does not fall within any of those exceptions. Check the mortgage and call the lender first.

Sharing Expenses and Rent

Co-tenants share financial responsibility in proportion to their ownership interests. Each owner is liable for their proportional share of property taxes, mortgage payments, insurance, and necessary repairs, even if only one co-tenant actually lives on the property.⁴ A 25 percent owner of a property with a $4,000 annual tax bill is responsible for $1,000 of it.

When one co-owner pays more than their share, they have a right of reimbursement from the others.⁴ The word “necessary” does real work here. Expenses that protect the property from loss, like structural repairs, past-due taxes, and insurance, qualify. Cosmetic upgrades generally do not, and a co-tenant who remodels the kitchen without agreement may struggle to recover those costs.

Ignoring shared obligations is dangerous. If property taxes go unpaid long enough, the county collector can publish notice of an application for judgment and sale under the Illinois Property Tax Code.⁵ A tax sale wipes out everyone’s interest, not just the delinquent owner’s.

Rent from a third party is treated the same way. Under the Joint Tenancy Act, a co-tenant who collects rent in a greater proportion than their ownership interest must account for the excess to the other owners.¹ The other owners can bring an accounting action to recover their share of net rental income after legitimate expenses.

What Happens When a Co-Tenant Dies

There is no right of survivorship. When a tenant in common dies, their interest does not pass to the other co-owners. It becomes part of the deceased owner’s estate and passes under their will or, if none, under Illinois intestate succession.⁶

Under the intestacy rules, a surviving spouse and descendants split the estate equally. If there is a spouse but no children, the spouse takes everything. If there is no spouse, the interest passes to descendants, then parents and siblings, and outward through the family tree.⁶ The result is that a surviving co-owner may end up sharing the property with the deceased owner’s heirs, including relatives they have never met.

Transferring the deceased owner’s interest typically requires probate in the local circuit court. An executor’s or administrator’s deed then transfers title to the new owners, who step into the same rights and obligations the deceased co-tenant held.

Creditor and Bankruptcy Exposure

A judgment creditor can record a lien against a debtor co-tenant’s interest. The lien attaches to that owner’s undivided share only, not the entire property, and follows the interest if the debtor later transfers or bequeaths it. The creditor gets paid from the debtor’s share of any sale or refinance proceeds.⁷

Illinois provides a homestead exemption that shields a portion of equity from creditors. As of January 1, 2026, the individual homestead exemption is $50,000. For co-owned properties, the combined exemption is $100,000, with each owner’s protection proportionate to their ownership percentage. A creditor cannot force a sale unless the debtor’s equity exceeds that threshold.

Bankruptcy is more dangerous. If a co-owner files Chapter 7, the trustee can sell not just the debtor’s interest but the entire property, including the non-debtor co-owners’ shares, when four conditions are met: physical partition is impractical, selling the debtor’s share alone would bring significantly less money, the benefit to the estate outweighs the harm to co-owners, and the property is not used for utility production.⁸ The non-debtor owners receive their proportional share of the proceeds, but they lose the property. Another owner’s financial problems can force you out of your home.

Any Co-Owner Can Force a Sale Through Partition

Any tenant in common, no matter how small their share, can file a partition lawsuit to end the co-ownership. The right to partition is nearly absolute under Illinois law, and courts will not deny it just because other owners want to keep the property.⁹

The court first decides whether the property can be divided physically without “manifest prejudice” to any party. For large agricultural tracts this is sometimes possible. For a single-family home or a commercial building it almost never is. When physical division does not work, the court orders a sale at public auction, and no sale can be approved for less than two-thirds of the court’s minimum valuation. Costs and attorney fees are apportioned among the parties based on their interests, unless a co-tenant raises a legitimate defense, in which case the defending party may recover costs from the plaintiff.¹⁰ Remaining sale proceeds are distributed to the former co-tenants by ownership percentage.

Extra Protections for Inherited Property

Illinois has adopted the Uniform Partition of Heirs Property Act (UPHPA), which adds safeguards when the property qualifies as “heirs property.” That definition is met when at least 20 percent of the interests were acquired from or are held by relatives, and no written agreement among the co-tenants governs partition.¹¹

The UPHPA changes the standard partition process in three ways:

The court appoints a licensed, disinterested appraiser to determine fair market value, rather than relying on the parties’ competing valuations.¹¹
Before any sale, co-tenants who did not request partition have 45 days to buy out the interests of those who did, at the appraised value.¹¹
If a sale is ordered and no co-tenant buys out, the default is an open-market sale through a licensed broker at a price no lower than the appraised value, rather than a courthouse auction.¹¹

The Act exists because families who inherit without a will often become tenants in common with cousins, siblings, and other relatives. Under the old rules, a single co-tenant could force a quick auction that sold the family home for well below market value. UPHPA gives the remaining family a real chance to keep the property or receive fair compensation.

Tax Basics for Co-Owners

Each co-tenant reports a proportional share of the property’s income, deductions, and gains on their own return. There is no separate entity return to file for a tenancy in common, which is part of what distinguishes it from a partnership for tax purposes.

When a co-tenant sells their interest, or the whole property sells through partition, each owner pays capital gains tax on their share of the profit. For property held longer than a year, the federal long-term capital gains rate is 0, 15, or 20 percent depending on taxable income, plus a possible 3.8 percent net investment income tax for high earners. If the property was the co-tenant’s primary residence for at least two of the five years before the sale, up to $250,000 in gains ($500,000 for married couples filing jointly) may be excluded from federal tax.

Gift tax is a quieter risk. A co-tenant who routinely pays more than their proportional share of expenses, perhaps covering a family member’s portion of the mortgage without expecting repayment, may be making a taxable gift. For 2026, the federal gift tax annual exclusion is $19,000 per recipient.¹² Payments above that in a given year require a gift tax return, though tax is typically not owed until the giver exceeds the lifetime exemption. Documenting overpayments as loans with a right of reimbursement avoids the problem.

Why a Written Co-Tenancy Agreement Matters

Illinois law provides a bare framework. It sets percentages and gives each owner the right to partition. It does not answer the practical questions that come up when people actually share property: Who handles maintenance? What if one owner stops paying? Can one owner rent out the property? What if someone wants to sell and the others want to keep it?

A written co-tenancy agreement fills those gaps. It also carries legal weight, because under the UPHPA the existence of a written agreement binding all co-tenants can remove the property from that Act’s special partition protections.¹¹ Provisions worth including:

Expense allocation, spelling out each owner’s share of taxes, insurance, mortgage payments, and maintenance, with deadlines and consequences for non-payment.
A right of first refusal, giving existing co-tenants the first chance to buy a departing owner’s share at fair market value before it goes on the open market.
Buyout triggers for events like death, divorce, disability, or bankruptcy of a co-owner.
A dispute resolution clause requiring mediation or arbitration before anyone files a partition suit.
Management authority, so routine decisions on rentals, repairs, and insurance do not require unanimous votes.

Without an agreement, every disagreement defaults to negotiation, and if negotiation fails, to the courthouse. That is an expensive way to settle an argument over paint color, and a devastating way to lose a family home.

1
Justia Law. Illinois Code 765 ILCS 1005 – Joint Tenancy Act
2
Illinois General Assembly. Illinois Code 765 ILCS 1005/1c – Tenancy by the Entirety
3
Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions
4
Illinois Courts. Bonavia v. Hibbs, 2013 IL App (2d) 120498-U
5
Illinois General Assembly. Illinois Code 35 ILCS 200/21-110 – Published Notice of Annual Application for Judgment and Sale
6
Illinois General Assembly. Illinois Code 755 ILCS 5/2-1 – Rules of Descent and Distribution
7
Illinois General Assembly. Illinois Code 735 ILCS 5 – Code of Civil Procedure, Article XII Enforcement of Judgments
8
Office of the Law Revision Counsel. 11 USC 363 – Use, Sale, or Lease of Property
9
Justia Law. Illinois Code 735 ILCS 5 – Code of Civil Procedure, Article XVII Partition
10
Illinois General Assembly. Illinois Code 735 ILCS 5 – Code of Civil Procedure, Article XVII Partition
11
Justia Law. Illinois Code 755 ILCS 75 – Uniform Partition of Heirs Property Act
12
Internal Revenue Service. Gifts and Inheritances