Detailed Answer

Short answer: Possibly — but whether a claimed right of survivorship lets you recover a larger share of surplus funds depends on (1) how title to the property was held and described in the deed, (2) the timing of any death(s) in relation to the foreclosure or sheriff’s sale, and (3) whether you can prove your ownership and priority to the party or court holding the surplus. In Massachusetts, you must present clear, recorded proof (deed language, death certificate, probate or other recorded documents) and follow the court or sale-administrator procedures to claim the excess sale proceeds.

What a “right of survivorship” means

“Right of survivorship” describes an ownership form where two or more people own property as joint tenants (or — for married couples in some circumstances — as tenants by the entirety). When one owner dies, ownership automatically vests in the surviving co-owner(s) rather than passing through probate. In plain terms, if the deed shows a valid right of survivorship and the death occurred before the sale that generated surplus funds, the survivor may be the sole owner and therefore entitled to the entire owner’s share of any surplus.

Key facts that control the outcome

• Deed language: The deed must clearly create a joint tenancy with right of survivorship (or tenancy by the entirety). Phrases like “joint tenants with right of survivorship” or “as husband and wife with right of survivorship” are typical. If the deed only says “as tenants in common” or simply lists co-owners without survivorship language, no automatic survivorship exists.
• Timing of the death: If the co-owner died before the foreclosure sale (or other sale that produced surplus funds), survivorship typically vests title in the survivor before the sale, so the survivor is the owner at the time of sale. If the death occurred after the sale, survivorship usually does not change who owned the property at the sale date — the deceased owner’s interest is treated as part of the estate.
• Effect of foreclosure and priorities: Surplus funds are sale proceeds remaining after payment of the foreclosing mortgage, sale costs and higher-priority liens. Those funds go to people or entities who held an interest in the property that was not paid by the sale. Establishing survivorship can move you from being a partial claimant (heir or tenant in common) to the sole owner — which affects how much you can claim.
• Proof and recordation: To get the surplus you must prove your ownership. That usually means a recorded deed showing the survivorship language, a certified death certificate for the deceased co-owner, and possibly a recorded affidavit or probate order if the chain of title is disputed.

Typical Massachusetts practice for asserting a survivorship claim to surplus funds

1. Identify who holds the surplus: In many foreclosure sales the sheriff, loan servicer, or the court retains surplus proceeds until claimants resolve competing claims. Carefully read the sale notice or contact the entity that ran the sale.
2. Gather evidence: recorded deed(s) from the Registry of Deeds, certified death certificate(s), any probates or administration files, and the chain of title. The Massachusetts registries of deeds keep recorded deeds and can provide certified copies (see Registry of Deeds information at https://www.mass.gov/orgs/registry-of-deeds).
3. File a claim: Follow the procedure required where the funds are held. That might mean sending a signed claim package to the sheriff or sale administrator, or filing a petition or motion in the court that handled the foreclosure sale. If the sale was under a court process, the court will typically have a process for distribution of surplus funds. For general information about foreclosure procedures in Massachusetts see the state guidance at https://www.mass.gov/guides/foreclosure-what-to-do-if-your-home-is-in-foreclosure.
4. Be ready for competing claims: Heirs, probate administrators, lienholders, or other co-owners may contest your claim. The holder of the funds will distribute only after satisfactory proof or a court order resolving disputes.
5. If necessary, file in court: If the administrator refuses your claim or competing claimants contest the issue, you may need to file a petition in the appropriate Massachusetts court asking the court to declare ownership and order distribution of surplus funds. Foreclosure laws and procedures relevant to sales are located on the Massachusetts legislative site; if you want to read the statutory framework governing foreclosures and sales, the Massachusetts General Laws chapter addressing foreclosure procedure is here: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter244.

Common complications you should expect

• If the deed is ambiguous or lacks survivorship language, the court may treat the owners as tenants in common; then each person’s estate gets only their percentage.
• Creditors of the deceased owner may assert claims against surplus funds if those funds represent property of the deceased’s estate.
• Recorded transfers, recorded mortgages, or title defects can affect who is entitled to surplus funds.
• Delays and procedural rules: the entity holding surplus funds may require certified documents and sworn affidavits; misfiling can delay or forfeit a claim.

Practical steps: how to assert a survivorship claim

1. Obtain a certified copy of the deed from the county Registry of Deeds.
2. Get a certified copy of the death certificate for the deceased co-owner.
3. Check the foreclosure sale paperwork for instructions about claiming surplus funds and the name of the fund-holder (sheriff, trustee, or court clerk).
4. Prepare a claim package: cover letter, certified deed, death certificate, a short affidavit explaining the chain of title and why you claim survivorship, and any probate documents if available.
5. Send the package by tracked mail and follow up in writing. If rejected, get the reason in writing and consider filing a court petition promptly.
6. Consider retaining an attorney early if the claim is contested or the amount is substantial. Title disputes and creditor claims can be factually complex.

Helpful Hints

• Don’t assume: a shared deed does not automatically mean survivorship. Look for explicit survivorship language or a later recorded document that creates survivorship.
• Timing is critical: confirm dates. If the co-owner died before the sale, survivorship likely benefits the survivor; if after, the deceased’s estate may share in proceeds.
• Start with the Registry of Deeds: certified copies of recorded documents are the evidence you’ll need.
• Collect probate papers early: if the deceased’s estate opened a probate or administration, those records can determine whether a personal representative claims the surplus instead of a survivor.
• Act promptly: some processes have practical or statutory time limits for making claims; delays can weaken your position.
• Do not transfer or spend any funds you receive until the matter is fully resolved. If a court later orders a different distribution, you may have to repay funds.
• When in doubt, consult a Massachusetts real property or probate attorney — they can prepare the claim package or file the necessary petitions and represent you if disputes arise.

Where to find more information

Registry of Deeds offices (document copies and recording information): https://www.mass.gov/orgs/registry-of-deeds.

General foreclosure information for Massachusetts homeowners: https://www.mass.gov/guides/foreclosure-what-to-do-if-your-home-is-in-foreclosure.

Massachusetts statutes governing foreclosure sales (statutory framework): https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter244.

Final words

If you believe you have a right of survivorship under a recorded deed and there are surplus proceeds from a sale, assemble the deed and death certificate, locate the holder of the surplus, and present your claim in writing with certified documents. If anyone contests your claim, get legal help — courts resolve title disputes and competing claims to surplus funds.

Disclaimer: This article explains general Massachusetts legal concepts and procedures for educational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about your specific facts and how to proceed, consult a licensed Massachusetts attorney.