Can you assert a right of survivorship in the deed to get a larger share of foreclosure surplus funds?

Short answer: Only if the deed already created a right of survivorship and the survivor owned the property interest at the time of the foreclosure sale. You cannot retroactively create a survivorship interest after the fact to increase your share. Proving entitlement requires clear, recorded documentation (the deed language and the timing of death) and usually a formal claim in the foreclosure case or before the court handling surplus funds.

Detailed answer — how South Carolina law treats deeds, survivorship, and surplus proceeds

1. Who owns the property when a foreclosure sale occurs matters

Surplus funds from a foreclosure sale are distributed to the people who hold legal title to the property when the sale occurs (after the sale pays off liens and costs). That distribution depends on how title is held immediately before the sale:

• If title is held by a joint tenancy with right of survivorship (JTWROS), the surviving joint tenant automatically owns the decedents share at that decedents death. If the decedent died before the foreclosure sale, the surviving joint tenant is typically the sole owner at the time of sale and would be entitled to the full surplus.
• If title is held as tenants in common, each owner holds a separate, divisible share. Surplus is distributed to owners in proportion to their shares at the time of sale.
• If title is held by tenants by the entirety (married couples), rights of survivorship often apply, but the details depend on the deed language and applicable South Carolina rules.

2. The deed controls — the exact wording matters

The decisive evidence is the recorded deed and any other documents that changed title before the sale. Phrases such as “joint tenants with right of survivorship” or “and the survivor(s)” are commonly used to create survivorship. Absent clear survivorship language, courts typically treat co-owners as tenants in common.

3. You cannot create a survivorship interest after the sale just to get more surplus

If the recorded deed at the time of sale did not create a right of survivorship, you cannot later claim one just to increase your share of the surplus. Courts look to the title and ownership at the time of sale. Actions like signing a later deed or an unrecorded agreement after a death generally will not change who owned the property at the sale.

4. Timing of death vs. timing of the sale is critical

Two common timing scenarios:

• If an owner with a survivorship deed died before the foreclosure sale, the survivor likely owns the entire interest at sale time and would be entitled to full surplus proceeds.
• If the owner died after the foreclosure sale, the decedent was still an owner at sale time and the decedents estate (or heirs) might claim the decedents portion of surplus, not the survivor by operation of a later death.

5. How dispute and claims are handled in South Carolina

Foreclosure surplus disputes in South Carolina are usually handled through the court or the official who conducted the sale (often a master-in-equity or the sheriff, depending on the procedure). If there is a dispute about who is entitled to surplus funds, the entity holding the funds may file an interpleader, and claimants must present evidence of title, deeds, and death certificates to establish entitlement.

Because procedures vary by county and by whether the foreclosure was judicial or power-of-sale non-judicial, you will often need to file a formal claim or motion in the court that supervised the foreclosure (commonly the master-in-equity in South Carolina). You may also have to respond to a purchasers petition or an interpleader and present documentary proof.

Common documentary proof you will need

• Certified, recorded copy of the deed(s) showing the language of conveyance
• Death certificate(s) for any decedent owners
• Chain of title or certified search from the county Register of Deeds showing transfers and recordings
• Any probate or estate documents if the decedents estate claims a share
• Copies of foreclosure pleadings, the sale report, and any masters or sheriffs sale return

Practical steps to assert (or defend) a survivorship claim to surplus funds

1. Obtain a certified copy of the deed from the county Register of Deeds immediately. Read the exact conveyance language for survivorship wording.
2. Get a certified copy of any death certificate(s) for co-owners whose survivorship you are asserting.
3. Check the foreclosure case file (master-in-equity or county court) for notices and any report of surplus funds. Determine who currently holds the surplus funds.
4. If you believe you are entitled to surplus, file a formal claim or motion in the court handling the foreclosure or respond to any interpleader; include the deed and death certificate as exhibits.
5. If ownership is contested, consult an attorney to evaluate a quiet title action or a contested surplus claim; courts may require litigation to sort competing claims.

Helpful hints

• Dont delay. Surplus funds may be distributed or held under deadlines. Act quickly once you learn about a sale.
• Recorded documents control. Informal family arrangements or unsigned promises rarely change legal title.
• Make sure the deed was properly executed and recorded before the critical dates. Errors in execution or recording can affect who lawfully owned the property at sale time.
• If the deed language is ambiguous, courts may need to interpret intent; that can require litigation. Keep all relevant documents and communications.
• Because county procedures vary, contact the county Register of Deeds, the clerk of court, or the master-in-equitys office to learn local steps for making a surplus claim.
• Consider hiring a South Carolina real property attorney early if the potential surplus is significant or if multiple parties dispute ownership.

Where to check South Carolina law and local procedures

South Carolina statutes, code sections, and references are available from the South Carolina Legislature at the official site: https://www.scstatehouse.gov/code.php. County-level offices (Register of Deeds, Clerk of Court, Master-in-Equity) maintain local records and can explain county-specific filing and claim procedures.

Final practical example (hypothetical)

Suppose Alice and Bob hold title “as joint tenants with right of survivorship.” Bob dies before the foreclosure sale. If the deed was properly recorded and Bobs death occurred before the sale, Alice typically owns the entire property at the time of sale and would be entitled to the surplus funds. By contrast, if Bob died after the sale, the estate would have a claim to Bobs share of any surplus. If the deed did not state survivorship language, Alice and Bob may be tenants in common and the surplus would be split according to each owners share unless the court orders otherwise.

Disclaimer

This article explains general principles under South Carolina law and is for educational purposes only. It is not legal advice. Facts matter in legal disputes, and outcomes depend on documents, timing, and local procedures. If you need to assert or challenge a claim to foreclosure surplus funds, consult a licensed South Carolina attorney who can review your deed, filings, and deadlines and advise you on next steps.