How can a former spouse or survivor assert entitlement to surplus funds following the owners death or divorce? | New Hampshire Probate | FastCounsel
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How can a former spouse or survivor assert entitlement to surplus funds following the owners death or divorce?

July 31, 2025 3 min read

How a Former Spouse or Survivor Can Claim Surplus Funds in New Hampshire

Detailed Answer

In New Hampshire, foreclosure sales or judicial property partitions sometimes produce surplus funds. A surplus arises when the sale price exceeds the amounts owed on mortgages and liens. State law directs those surplus funds to the parties entitled to them. A former spouse or a survivor (heir or personal representative) may qualify to claim part of these funds.

1. What Are Surplus Funds?

Surplus funds are the excess proceeds from a court-ordered sale of real property. After the mortgage, fees, and liens are paid, any remaining money is surplus.

2. Relevant New Hampshire Statutes

3. Who Qualifies to Claim Surplus Funds?

The following parties may assert entitlement:

  • Former spouse with a divorce decree awarding a share of marital property proceeds under RSA 458:16.
  • Surviving spouse or heirs of a deceased owner under New Hampshire intestacy rules (RSA 551:1).
  • Personal representative or administrator appointed in the probate estate.

4. Step-by-Step Claim Process

  1. Review the court file. Locate the foreclosure or partition docket and the trustees account showing surplus under RSA 479:40.
  2. Gather documentation. For a former spouse, obtain a certified divorce decree and marital settlement. For a survivor, secure the death certificate and letters testamentary or of administration.
  3. Prepare a petition. Draft a Petition for Distribution of Surplus Funds. Include:
    • Case name and number
    • Your status (former spouse, surviving spouse, heir, or personal representative)
    • Legal basis for your claim (divorce decree clause or intestacy statute)
    • Copies of supporting documents
  4. File the petition. Submit it to the Superior Court clerk in the county where the sale occurred. Note any deadline—typically within one year of sale under RSA 479:40.
  5. Serve interested parties. Serve all mortgagees, lienholders, and other claimants as required by court rule.
  6. Attend the hearing. The court may set a hearing to resolve competing claims. Present your proof of entitlement.
  7. Obtain the order. Once the court approves your claim, the clerk will issue a disbursement order directing the trustee or court to pay you the surplus.

Helpful Hints

  • Act quickly. Unclaimed surplus funds can escheat to the state under RSA 556:14 after five years.
  • Get certified copies. Courts require certified decrees, death certificates, and letters.
  • Consult court rules. The Superior Court Civil Rules govern filing and service.
  • Track deadlines. Missing the one-year window under RSA 479:40 may forfeit your claim.
  • Consider legal advice. Though not required, an attorney can help navigate complex title or probate issues.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.