Detailed Answer — Can you assert a right of survivorship under a deed to get a larger share of foreclosure surplus funds (Maine)?

This answer explains, in plain language, how survivorship interests (for example, joint tenancy with right of survivorship or tenancy by the entirety) interact with surplus funds that remain after a foreclosure sale in Maine. It assumes no prior legal knowledge.

What are “surplus funds” after a foreclosure sale?

When real property is sold in a foreclosure sale, the sale proceeds first pay the costs of sale and the lawful liens in order of priority (senior mortgage, junior mortgages or liens, taxes, etc.). If the sale brings in more money than the total of those obligations, the leftover money is called surplus funds or excess proceeds. Those funds are distributed to whoever the law determines was entitled to them.

What is a right of survivorship?

A right of survivorship means that when one co‑owner dies, the surviving co‑owner(s) automatically own the property outright. Common forms in Maine include joint tenancy with right of survivorship and tenancy by the entirety (between spouses). That right operates outside probate: title vests automatically in the survivor when the co‑owner dies.

Which person is entitled to surplus funds?

Generally, surplus funds belong to the person or persons who lawfully owned the property at the time the right to those funds arose. In a foreclosure context, courts look to who had legal title when the lien was enforced or when distribution is to be made. Key timing points are:

If a co‑owner died before the foreclosure sale or before the court fixed distribution, and the surviving co‑owner had legal title by operation of survivorship before the sale or distribution, the survivor may be the only owner entitled to the surplus.
If both co‑owners were alive and held interests at the critical time (for example, at the moment the mortgage was foreclosed or when the court distributed proceeds), the surplus may be distributed according to each owner’s share as shown in the deed or as determined by court rules and claims.

Can you assert a survivorship claim now to get a larger share?

Short answer: Maybe — but it depends on timing, documentary proof, the recorded deed, and whether the transfer was legitimate or done to defeat creditors.

Important considerations:

Timing of death: If a co‑owner died before the foreclosure sale and the deed created a valid survivorship interest, the surviving co‑owner may have become sole owner before distribution and therefore be entitled to the whole surplus.
Timing of conveyance: If a deed was changed or a survivorship deed was recorded only after a foreclosure was already underway or after a lien was created, a court may view the transfer as an attempt to defeat creditors. Courts can set aside transfers made with the intent to hinder, delay, or defraud creditors (fraudulent conveyance principles) and deny the benefit of those transfers.
Recorded chain of title: The surviving co‑owner needs clear, recorded evidence (the deed showing survivorship, death certificate if relevant, and proper recording dates) to support a claim. Maine courts and the registry of deeds rely on recorded documents to determine ownership.
Priority of other claimants: Junior lienholders, other co‑owners, or parties with prior claims could have superior rights to part or all of the surplus. The court will sort competing claims based on lien priority and proven ownership interests.

How Maine courts typically resolve competing claims

Maine courts resolve distribution in foreclosure cases by examining the title records, the timing of transfers and deaths, and evidence of any intent to defeat creditors. If title vested by survivorship before the foreclosure event that gave rise to distribution, the surviving owner’s claim is stronger. If the transfer or declaration of survivorship was done in anticipation of foreclosure to shield assets, the court may disallow it.

For practical guidance from Maine’s courts and procedures for foreclosure and distribution of proceeds, see the Maine Judicial Branch website: https://www.courts.maine.gov/. For Maine statutory law and the relevant statute text, see the Maine Revised Statutes index: https://legislature.maine.gov/statutes/.

What you should do next — step by step

Obtain recorded documents: Get a copy of the deed, any recorded survivorship declaration, and the chain of title from the county registry of deeds.
If the co‑owner died, obtain a certified copy of the death certificate and the recorded death notice if any.
Get foreclosure sale papers: the sheriff’s or trustee’s return of sale, the court order confirming sale (if judicial sale), and the accounting showing how proceeds were applied.
Check recording dates: compare when the deed conveying survivorship (or the original deed showing survivorship) was executed and recorded against the dates the mortgage was created, any notices of default, and the foreclosure sale date.
File a claim or motion for distribution: in Maine foreclosure procedures, a claimant typically must file a claim or motion with the court handling the foreclosure or follow the process used by the officer who handled the sale to request distribution of surplus funds.
Be ready for challenges: other parties (creditors, junior lienholders, surviving heirs) can contest your claim; you will need good documentary proof and possibly evidence about the timing and purpose of any transfer.
Talk to an attorney promptly: these disputes are often factually and legally complex and may require litigation to decide ownership of surplus funds.

Common pitfalls

Assuming a recorded deed with survivorship wins automatically — courts examine timing and intent.
Trying to convey title or create survivorship after default or right before sale to defeat creditors — courts often treat such transfers skeptically.
Failing to gather necessary documents and to file any required claims or motions in the proper court or registry.

Helpful Hints

Start with the registry of deeds: obtain certified copies of deeds and document recording dates.
Locate the foreclosure file: get the court docket entry or sale officer’s return to see how and when proceeds were handled.
Compare dates carefully: the date of death or the date a surviving interest vested is usually decisive.
Preserve evidence of intent: if a transfer was legitimate (e.g., long before any lender problem), documentation showing that helps your claim.
Watch for fraudulent conveyance issues: transfers done to avoid creditor claims can be undone by the court.
If you are unsure, contact a Maine real‑estate or litigation attorney quickly — timelines and procedural steps for claiming surplus can be short.

Where to read the law and get official forms

– Maine Revised Statutes (general statutory text): https://legislature.maine.gov/statutes/

– Maine Judicial Branch (information about foreclosure, sale procedures, and court forms): https://www.courts.maine.gov/

– Registry of Deeds for the county where the property sits: visit the appropriate county registry of deeds web page from the Maine county listings on the Maine government or county websites.

Disclaimer: This is general information about Maine law and is not legal advice. It does not create an attorney‑client relationship. For advice about your particular situation and for help filing claims or responding to challenges, consult a licensed Maine attorney promptly.