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How can a former spouse or survivor assert entitlement to surplus funds following the owner’s death or divorce?

July 31, 2025 3 min read

How a Former Spouse or Survivor Can Assert Entitlement to Surplus Funds in Virginia

Detailed Answer

Surplus funds, sometimes called excess proceeds, arise when a property sale—whether a foreclosure, a court-ordered sale in divorce, or the sale of estate assets after death—yields more money than owed to creditors. Virginia law allows the former owner, a former spouse, or a surviving spouse to claim those funds. Understanding the steps and filing deadlines ensures you protect your rights.

1. Claiming Surplus Funds After a Deed of Trust Foreclosure

Under Va. Code § 55.1-321, a trustee must deposit any sale proceeds exceeding the debt with the clerk of the circuit court where the property sits. As the former property owner or spouse with an interest, you must:

  • Confirm deposit of surplus funds with the Circuit Court Clerk.
  • File a petition or motion with the clerk within one year of the sale (verify the exact deadline in local rules).
  • Attach a certified copy of the final trustee’s sale report, your deed of trust, and proof of your identity.

See Virginia Code § 55.1-321: law.lis.virginia.gov/vacode/title55.1/chapter13/section55.1-321/.

2. Asserting Rights After Divorce (Equitable Distribution)

Virginia’s equitable distribution statute, Va. Code § 20.1-107.3, governs division of marital property. If the court orders sale of real estate, the clerk holds the sale surplus. To claim your share as a former spouse:

  • Obtain a certified copy of the final divorce decree and order of distribution.
  • File a motion for payment of surplus funds with the clerk of the circuit court that handled the divorce.
  • Attach the decree, financial schedules submitted in the divorce, and proof of identity.

See Va. Code § 20.1-107.3: law.lis.virginia.gov/vacode/title20.1/chapter6/section20.1-107.3/.

3. Claiming Funds as a Surviving Spouse After Death

When an estate sells real estate or other assets, any leftover funds pass to heirs or devisees. As a surviving spouse, you also qualify for an elective share under Va. Code § 64.2-304. To assert your claim:

  • Open probate and confirm the personal representative has filed an inventory with the court.
  • Within six months of probate, file a “Petition for Elective Share” in the circuit court. Serve a copy on the personal representative.
  • Include your marriage certificate, the decedent’s will (if any), and the filed inventory.

See Va. Code § 64.2-304: law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-304/.

Helpful Hints

  • Act quickly—missing deadlines can forfeit your claim.
  • Contact the Circuit Court Clerk in the relevant jurisdiction for local filing rules and fees.
  • Gather certified court orders, sale reports, and identity documents before you draft your petition.
  • Consider consulting a Virginia attorney for complex lien disputes or large estates.
  • If funds remain unclaimed after two years, they may escheat to the state’s Unclaimed Property Division: trs.virginia.gov/unclaimed-property/.

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.