In Lowry v. Irish, 2020 Del. Ch. LEXIS 290 (Del. Ch. Sept. 18, 2020), Vice Chancellor Sam Glasscock considered the validity of a contractual waiver of the right to partition an estate in real property. On a motion for judgment on the pleadings, he held that the purported waiver was invalid because it was an unreasonable restraint on alienation.

The dispute involved 140 acres of farmland near Milton, Delaware. Two siblings had acquired the property from their parents by gift and purchase. In a written co-ownership agreement, they agreed to waive any right that they may have to seek partition of the property without the prior written consent of the other. The agreement purported to bind third-party purchasers, as well as the heirs, personal representatives, successors and assigns of the signatories. The agreement would terminate when all interests in the property were sold or merged.