Detailed Answer: How survivorship affects claims to surplus funds in New York

Short answer: A valid right of survivorship can change who legally owns the property at the time of a foreclosure sale and therefore who is entitled to any surplus proceeds. Whether you can use a survivorship claim to get a larger share depends on (1) the deed language, (2) the timing of the decedent’s death in relation to the foreclosure sale and distribution, (3) the recorded chain of title, and (4) competing liens or court orders. You will usually need documentary proof (deed, death certificate, affidavits, and sometimes probate or letters testamentary) and you must assert your claim quickly through the proper court or sheriff’s surplus-procedure to preserve rights.

How New York treats survivorship interests

New York recognizes joint tenancy with right of survivorship and tenancy by the entirety (for married couples) as ways property ownership can pass automatically at death. The deed language is controlling: wording such as “as joint tenants with right of survivorship,” or “with right of survivorship” generally creates a survivorship estate, while silent or ambiguous language may create a tenancy in common (no automatic survivorship).

For background on conveyances and property interests in New York, see the Real Property Law (for conveyance rules) and the Real Property Actions and Proceedings Law (for procedures involving foreclosures and surplus funds). For example, you can read the RPL on the New York Senate site: https://www.nysenate.gov/legislation/laws/RPL, and the RPAPL here: https://www.nysenate.gov/legislation/laws/RPA.

Timing matters: who owns the property when the sale or distribution happens

Ownership for surplus-distribution purposes is generally determined by who holds title at the relevant time. Key timing checkpoints:

Death before the foreclosure sale: If the decedent died before the sale and the surviving joint tenant or spouse acquired full title by survivorship prior to the sale, the survivor was the owner at sale time. The survivor generally is entitled to any surplus (subject to liens or other valid claims).
Death after the foreclosure sale but before distribution: If the decedent died after the sale but before the surplus was distributed, courts look to when the legal ownership passed. If survivorship operates immediately on death, the surviving joint tenant usually succeeds to the decedent’s interest, and the survivor may claim the surplus. If legal title passed earlier or the sale cut off interests, the analysis can be more complex.
Death after distribution: If surplus funds already were paid out to other claimants before death, the survivorship claim may not change the existing distribution unless there was fraud or mistake.

Common scenarios (hypotheticals) and outcomes

These examples illustrate how courts typically analyze claims:

Hypothetical A: Deed reads “A and B, as joint tenants with right of survivorship.” B dies one month before the sheriff’s sale. At sale time, A holds title outright by survivorship. A files a claim and is likely entitled to the surplus (except for superior liens).
Hypothetical B: Deed names A and B without survivorship language (or as tenants in common). B dies before sale. B’s interest passes under the will or intestacy, not automatically to A. The decedent’s estate or heirs must assert the claim to the surplus, not A.
Hypothetical C: Deed lists A and B as joint tenants. B dies after the sale but before the surplus distribution. If at the moment the sale extinguished subordinate interests the law treats ownership as having vested in the purchaser and the surplus distribution follows the court’s order, surviving joint tenants often still assert survivorship to claim the decedent’s share—timing and court orders matter, and you must act quickly to file a claim with the court or sheriff handling the surplus.

Practical steps to assert a survivorship claim for surplus funds in New York

Obtain the recorded deed and read the precise language. Survivorship requires clear language in most cases.
Obtain a certified copy of the death certificate for the decedent named on the deed.
Check the foreclosure case docket and any sheriff or referee return of sale to identify when the property was sold and when surplus funds were set aside or distributed.
If surplus funds remain, contact the sheriff, referee, or court clerk handling the foreclosure and ask about the procedure and deadline to file a claim for surplus funds. Many surplus distributions are handled by court order or by the sheriff/referee under RPAPL procedures.
Prepare documentary proof: recorded deed, death certificate, signed affidavit of survivorship (if used in your county), any probated will or letters testamentary if the title did not pass by survivorship, and proof of identity for the claimant.
If another party claims a share (a creditor, lienholder, or an heir), you will likely need to file a motion in the foreclosure action or a petition in court asserting your right and asking the court to direct distribution to you.
Act quickly. Many courts enforce strict deadlines for claims against surplus funds. Missing a deadline can waive rights.

Competing claims and common complications

Several things can reduce or eliminate a survivorship claimant’s recovery:

Unpaid mortgages, judgment liens, tax liens, or other recorded encumbrances that have priority over ownership-based claims to surplus.
Ambiguous or defective deed language that fails to create a clear survivorship estate.
Late claims or failure to follow the court/sheriff surplus-claim procedure.
Recorded assignments, releases, or transfers that altered ownership before the sale.

How a court resolves disputes

If two or more parties claim the surplus, the foreclosure court (or the court supervising distribution) decides who has the legal right to the funds. The court examines the recorded title, the timing of death, documentary proof, and applicable law. Often the court will require filing a formal claim or motion and may hold a hearing. The court may also require additional proof such as probate papers if the decedent’s interest passed by will or intestacy rather than by survivorship.

Where to find the governing procedures and statutes

Procedures for foreclosure sales and distribution of surplus moneys are governed by the Real Property Actions and Proceedings Law (RPAPL) and related court rules. You can read the RPAPL on the New York Senate website: https://www.nysenate.gov/legislation/laws/RPA. For rules and examples about property conveyances and how title is created or transferred, see the Real Property Law pages here: https://www.nysenate.gov/legislation/laws/RPL.

When to consult an attorney

Because disputes over surplus funds can be time-sensitive and fact-specific (deed wording, compteting liens, probate status, foreclosure case history), consult an attorney experienced in New York real estate and foreclosure law if:

You believe a survivorship claim gives you entitlement to surplus funds and another party contests it.
The deed language is ambiguous or the chain of title is complicated.
There are competing liens, tax claims, or probate issues.
You need help filing the right motion or claim before a court or sheriff.

Helpful Links

New York Consolidated Laws — Real Property Actions and Proceedings Law (RPAPL): https://www.nysenate.gov/legislation/laws/RPA
New York Consolidated Laws — Real Property Law (RPL): https://www.nysenate.gov/legislation/laws/RPL
New York State Unified Court System (for foreclosure case lookups and local clerk contact info): https://www.nycourts.gov/

Helpful Hints

Read the deed carefully: clear survivorship language is decisive. If the deed is ambiguous, get a title review.
Gather documents immediately: recorded deed, certified death certificate, foreclosure case docket, and any recorded liens.
Contact the sheriff or referee handling the sale as soon as you learn of surplus funds to learn the claim procedure and deadlines.
If you are a surviving joint tenant, consider recording an affidavit of survivorship with the county clerk once you have proof of death; this can simplify future transactions but may not substitute for court filings in an active foreclosure surplus dispute.
If you are an heir or executor (not a surviving joint tenant), be prepared to show probate papers or letters testamentary if the estate’s interest is at issue.
Keep copies of everything you file and accept only certified returns of service for court filings—timing is often critical.
When in doubt, contact a New York real estate or foreclosure attorney quickly; missing procedural deadlines can cost you the right to claim surplus funds.