How Can a Former Spouse or Survivor Assert Entitlement to Surplus Funds Following the Owner’s Death or Divorce?

Detailed Answer

When real property in Ohio sells under court order such as in a foreclosure or partition sale any proceeds above the amount owed (the surplus funds) remain in the court treasury awaiting distribution. Under Ohio law, those who held an interest in the property at the time of sale may assert a claim to those funds. This includes both a surviving spouse (when the owner dies) and a former spouse (when the property was divided in a divorce).

1. Identify the Right Legal Process

Foreclosure/Partition Surplus: Governed by R.C. 7 2329.50 6.52. After sale, the clerk deposits surplus proceeds.
Death of Owner: If the homeowner died before or after sale, a surviving spouse or the personal representative of the estate acts under R.C. 7 2113.36 (spousal rights) and R.C. 7 2109.28 (estate claim procedures).
Divorce of Owner: If the sale followed a divorce, a former spouse relies on the divorce decree or property settlement agreement (see R.C. 7 3105.171) plus the surplus claim procedure in R.C. 7 2329.50 6.52.

2. Prepare Your Claim Application

Most Ohio courts require a Verified Application for Distribution of Surplus Funds. Key elements include:

Case caption, sale date, and the sheriffs or clerks case number.
Identification of the claimant (surviving spouse or former spouse) with contact information.
Statement of interest (for example, “I am the surviving spouse of John Doe, the record owner at the time of sale,” or “I am the former spouse pursuant to the judgment entry of divorce in Case No. 20CV1234”).
Attachment of supporting documents:
- Death certificate and letters testamentary or spousal qualification (for a survivor).
- Divorce decree or property settlement order (for a former spouse).
- Marriage certificate (to prove spousal relationship).
Filing fee (varies by county, often $20 – 20).

3. File and Serve Your Application

File the application at the clerks office in the county where the sale occurred. Then serve a copy on all known claimants, including the sheriff, the trustee in foreclosure, lienholders, and any other potential beneficiaries. Service typically follows the Ohio Rules of Civil Procedure (Rule 14).

4. Attend the Court Hearing

The court sets a hearing date. At the hearing:

The judge reviews all claims and documentation.
The judge resolves competing claims by priority: costs of sale, lienholders, secured creditors, then owners.
If you prevail, the court issues an Order for Distribution of Surplus Funds, directing the clerk to cut a check in your name.

5. Obtain Your Funds

Once the order is journalized, return to the clerks office with proper identification. You will receive the surplus funds by check.

Key Ohio Statutory References

Surplus Distribution: Ohio Rev. Code 7 2329.50 6.52 (§2329.50, §2329.52).
Spousal Rights at Death: Ohio Rev. Code 7 2113.36 (§2113.36).
Estate Claims: Ohio Rev. Code 7 2109.28 (§2109.28).
Divorce Property Division: Ohio Rev. Code 7 3105.171 (§3105.171).

Helpful Hints

File your claim promptly. R.C. 2329.53 gives one year from sale to claim surplus.
Double-check the case number and sale date to avoid clerical delays.
Keep certified copies of all documents; original documents may be returned by the court.
Serve all lienholders and potential claimants to prevent contested hearings.
Consult a qualified Ohio attorney if another party challenges your claim.