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

1. Detailed Answer

Surplus funds arise when a foreclosure sale or tax sale of real property generates more money than the outstanding lien or taxes owed. In Montana, these funds go into the county treasury until a valid claimant steps forward. A former spouse or survivor may qualify if state law grants them a legal interest in the property or its proceeds.

A. After the Owner’s Death

1. Identify Unclaimed Funds.
   Check the county treasurer’s or sheriff’s website for lists of surplus proceeds following foreclosure or tax sales.
2. Confirm Your Legal Interest.
   Under Mont. Code Ann. § 72-2-109, a surviving spouse or heir may have rights to estate assets. If the decedent died without a will, intestate succession rules at § 72-2-109 apply. If a will exists, the personal representative distributes assets per the will.
3. Gather Required Documents.
   • Certified death certificate of the decedent
   • Marriage certificate or divorce decree (if applicable)
   • Letters of administration or testamentary if the probate court appointed an estate representative
4. Prepare a Claim Form.
   Complete the county’s affidavit of entitlement. The form typically asks for your contact information, your relationship to the decedent, and the basis for your claim.
5. File Your Claim.
   Deliver the original signed affidavit and supporting documents to the county treasurer’s office before the statutory deadline—usually within one year of the sale. Late claims may be denied. See Mont. Code Ann. § 15-19-123 for distribution procedures: § 15-19-123.
6. Follow Up.
   The treasurer’s office will review your claim and may request additional information. Once approved, they will issue a warrant or check for the surplus amount.

B. After Divorce

1. Verify Marital Interest.
   Under Montana’s community property rules (Mont. Code Ann. § 40-4-201), spouses share ownership of assets acquired during marriage. Upon divorce, each spouse is entitled to an equal share unless the court orders otherwise.
2. Locate Surplus Funds.
   Search the county surplus list where the property was sold. Funds remain unclaimed until a valid owner or former owner claims them.
3. Obtain Divorce Decree.
   Secure a certified copy of the final divorce decree showing property division terms.
4. Submit a Claim.
   Use the county’s affidavit form. Attach your divorce decree and any deed or lien documents showing your interest. File within one year of the sale date.
5. Collect and Track.
   After filing, confirm receipt with the treasurer’s office. Promptly respond to any follow-up requests.

2. Helpful Hints

• Check County Deadlines Early: Counties post deadlines online—don’t miss the one-year cutoff.
• Use Certified Copies: Originals stay with the county; provide certified copies of certificates and decrees.
• Maintain Clear Records: Keep copies of all filings, receipts, and correspondence with the treasurer’s office.
• Understand Community vs. Separate Property: Your entitlement may depend on when the property was acquired.
• Consult Probate Records: If the decedent’s estate is open in probate, confirm that the personal representative hasn’t already claimed or distributed the surplus.
• Consider Professional Help: An attorney or title company can review your claim package to ensure accuracy.