Short answer
If the recorded deed clearly created a survivorship interest (for example, joint tenancy with right of survivorship or tenancy by the entirety), a surviving co-owner can often claim the entire ownership interest — including any surplus funds after a foreclosure sale — without those funds passing through the deceased owners probate estate. If the deed does not create a clear survivorship interest, the surplus may instead belong to the deceased owners probate estate and distributed according to probate law. The court that handles the foreclosure surplus will decide who gets the funds based on the recorded title, the evidence presented, and applicable Florida law (including the statutes governing distribution of surplus funds).
Detailed answer: How survivorship and surplus funds work under Florida law
1. What are surplus funds?
When a property is sold in a foreclosure sale and the sale price exceeds the total liens, costs, and fees, the remaining money is called the surplus (or overage). Florida law directs how those surplus funds are handled and distributed by the clerk or the court. See Florida Statutes 7 45.031 for rules about distributions of sale proceeds and surplus moneys: https://www.flsenate.gov/Laws/Statutes/45.031.
2. When does a survivorship interest control distribution?
Florida recognizes several ways a survivorship interest can be created:
- Deed language that expressly creates a joint tenancy with right of survivorship or tenancy by the entirety;
- Deeds to married couples that create tenancy by the entirety (for married owners); and
- Properly executed transfer-on-death instruments (separate statutory process) where applicable.
If the deed on record before the foreclosure sale shows that the surviving person immediately owned the whole property by right of survivorship at the time of the sale or at the death of the co-owner, the surplus is typically treated as belonging to the surviving owner. If the deed does not contain clear survivorship language, the property (and any surplus) may be treated as part of the deceaseds estate and handled in probate.
3. What evidence will the clerk or court require?
To assert a survivorship claim, you should be prepared to provide clear, recorded proof:
- Certified copy of the recorded deed showing the claimed survivorship language;
- Certified death certificate for the deceased co-owner; and
- Any affidavits or recorded documents needed to show the change of title to the survivor (for example, an affidavit of survivorship or an affidavit of death, if applicable).
The clerk or judge will compare recorded documents, the foreclosure case record, and any competing claims before releasing surplus funds. If other parties (heirs, a personal representative, creditors) file competing claims, the court may need to resolve ownership through a hearing.
4. What if the deed language is unclear or absent?
If the deed lacks explicit survivorship language, courts generally treat co-owners as tenants in common, meaning each owner owns a specific share that passes through the deceased owners probate estate. In that case, the surplus funds will usually be distributed according to the probate process, and an executor or personal representative will claim them for the estate. Competing claims can prompt litigation to determine title. If you are unsure whether the deed created survivorship, consider getting a title search and a lawyers opinion.
5. Are there special rules for married couples?
Florida recognizes tenancy by the entirety for married couples when a conveyance is made to both spouses as a single ownership unit. Tenancy by the entirety carries a right of survivorship: when one spouse dies, the survivor owns the whole property automatically. Whether the surplus follows that same rule depends on whether the clerk or court recognizes that survivorship existed at the relevant time. If the recorded deed shows tenancy by the entirety, the surviving spouse typically receives the surplus funds.
6. Practical steps to assert a survivorship claim to surplus funds
- Obtain a certified copy of the recorded deed and a certified death certificate.
- Check the foreclosure case file and contact the clerk of court handling the foreclosure to learn the procedure and deadlines to claim surplus funds.
- File a formal claim for surplus funds with the clerk or submit a motion in the foreclosure case, attaching the deed and death certificate as proof of survivorship.
- If the clerk questions the claim or other parties contest it, be prepared to ask the court to resolve title. Consider hiring a Florida attorney experienced in foreclosure surplus and title disputes.
7. What if someone else claims the funds?
If heirs, a personal representative, or creditors claim the surplus, the court will evaluate all competing proofs of ownership, recorded documents, and applicable law. The court can order a hearing, freeze the funds, or appoint a representative to handle distribution while the dispute resolves.
8. Where to find the governing statute
Floridas rules for distribution of foreclosure sale proceeds and surplus moneys are set out in the Florida Statutes. See: Florida Statutes 7 45.031 (Disposition of surplus moneys). For rules about how deeds and conveyances operate in Florida, see the statutes on conveyances (Chapter 689): Florida Statutes Chapter 689.
Helpful Hints
- Start early. Contact the clerk of court for the foreclosure case immediately to learn the claim procedure and deadlines.
- Get certified documents. A certified copy of the recorded deed and a certified death certificate are usually the minimum evidence required.
- Check the deeds exact language. Phrases like “with right of survivorship” or “as tenants by the entirety” are stronger than ambiguous listings of names.
- Record any required affidavits. If you obtain an affidavit of survivorship, record it promptly to help clear title.
- Expect objections. Other parties (creditors or heirs) can file competing claims; be prepared for a court hearing if necessary.
- When in doubt, consult a Florida real estate or probate attorney. Title disputes around foreclosure surplus can involve overlapping foreclosure, probate, and property law issues.
Common hypothetical (illustrative)
Imagine a deed recorded years ago conveys property to “Alice and Bob, as joint tenants with right of survivorship.” Bob dies before a lender forecloses. A foreclosure sale produces surplus funds. Because the deed created a clear survivorship right, Alice can present the recorded deed and Bobs death certificate to the clerk, claim the surplus, and — barring competing claims — receive the funds without probate.
Final notes and next steps
If you believe you hold a survivorship interest and wish to claim surplus funds, gather the deed and death certificate, contact the foreclosure clerk, and act promptly. If the title situation is unclear or contested, consider consulting a Florida attorney who handles foreclosure surplus or probate matters to protect your rights.
Disclaimer: This article explains general legal principles under Florida law and provides informational guidance only. It does not constitute legal advice, create an attorney-client relationship, or guarantee any particular outcome. For advice about your specific situation, consult a licensed Florida attorney.