How a Former Spouse or Survivor Can Claim Surplus Funds After Death or Divorce in Louisiana

Detailed Answer

When a court-ordered sale of immovable property in Louisiana yields more than the debt and costs, the balance—called “surplus funds”—goes to those legally entitled. A former spouse (after divorce) or a surviving spouse/heir (after death) may claim these funds by following Louisiana’s Code of Civil Procedure and Civil Code rules.

1. Determine Your Legal Interest

• Following Divorce: Under Louisiana Civil Code art. 2338, community property normally splits equally on divorce. If the property sold while in community, each ex-spouse owns half of any surplus.
• After Death: The surviving spouse has a usufruct over the decedent’s share and may take part of the surplus as property of the succession. Heirs also may have a naked ownership interest.

2. Review the Governing Statutes

• La. C.C.P. art. 2332 (Distribution of Sale Proceeds): “If the property sells for more than the amount of the judgment . . . the balance shall be paid by the sheriff to the judgment debtor or to any other person who establishes a legal right thereto.”
(See: La. C.C.P. art. 2332)

• La. C.C.P. art. 2853 (Proceedings to Claim Funds): A party claiming surplus must file a rule to show cause in the court which ordered the sale and serve it on the sheriff.
(See: La. C.C.P. art. 2853)

3. Gather Required Documentation

• Certified copy of the divorce judgment or community property settlement showing your interest.
• Certified death certificate of the property owner and marriage certificate where a survivor claim applies.
• Succession documents or heirship affidavits if you are an heir.
• Copy of the sheriff’s sale act and inventory showing the surplus amount.

4. File a Rule to Show Cause

• Draft and file a “Rule to Show Cause” petition in the district court that ordered the sale.
• Describe your relationship to the decedent or former spouse and your legal interest in the surplus funds.
• Attach certified supporting documents.
• Serve the petition on the sheriff of the parish where the sale occurred and all parties in the foreclosure or executory proceeding.

5. Attend the Hearing and Secure an Order

The court will set a hearing date. At the hearing, present your proof of entitlement. If unopposed and sufficient, the judge will issue an order directing the sheriff to pay you the surplus funds.

6. Observe Deadlines

• Under La. C.C.P. art. 2859, actions for surplus funds prescribe three years from the date of sale.
• File promptly to avoid losing your claim.
• If no valid claim surfaces within one year, the sheriff may deposit funds into the state treasury under La. R.S. 13:4807.

Helpful Hints

Consult a local attorney to confirm your community-property or succession rights.
Review the sheriff’s online or published notices of sale to verify sale dates and surplus amounts.
Order certified court records early to avoid delays in filing.
Keep track of all deadlines under the Code of Civil Procedure to protect your claim.
If heirs or co-owners dispute your claim, consider mediation or a declaratory-judgment action in succession court.