Detailed Answer

Short answer: Maybe — but only if you can prove that a valid survivorship interest existed and that it applied at the time the foreclosure sale or distribution occurred. The right of survivorship created by a deed can affect who owns the property after a co-owner dies, and ownership affects who can claim surplus proceeds. However, showing that survivorship entitles you to a larger share of surplus funds usually requires clear, recorded documentation, timely legal action, and often a court decision resolving competing claims.

This answer explains how courts generally treat survivorship interests and surplus funds in South Dakota, what evidence you will need, typical procedural steps to assert a claim, and common pitfalls.

How survivorship interests work in deeds

A deed can create a joint ownership with a right of survivorship when it clearly conveys the property to two or more people as joint tenants with rights of survivorship or uses language that unambiguously transfers a survivorship estate. When survivorship is valid and the co‑owner dies, title vests automatically in the surviving co‑owner (subject to liens and recorded encumbrances).

Whether a deed actually created survivorship depends on the deed wording and recording history. A surviving owner who holds title by right of survivorship owns the property free of the decedent’s personal interests (but liens recorded against the property may remain).

What happens to surplus funds after a foreclosure sale

When a foreclosure sale produces more money than required to pay the foreclosing lien and higher‑priority claims, the remaining balance (the surplus) must be distributed to parties entitled to it under the law and the court’s order supervising the sale. Typical priority is: (1) junior lienholders who properly file claims, then (2) the former owner (mortgagor) or their heirs or successors in interest. If a deed granted a survivorship interest and title vested in a survivor before the sale or distribution, that survivor may be treated as the owner for purposes of surplus distribution.

Timing and title at key moments

The crucial question is: who owned the property at the moment that affected the distribution? There are two common timing issues:

• If a co‑owner died before a creditor foreclosed and title had already vested in the surviving co‑owner under the deed’s survivorship language, the foreclosure surplus generally belongs to whoever had title at the time of sale or distribution (subject to lien priorities).
• If a foreclosure sale occurred while both co‑owners were alive (or before survivorship vested), the sale can cut off interests and the distribution follows the priority of claims present at the time of sale. A later death does not retroactively change who was entitled to proceeds from that sale.

Evidence you will need to assert a survivorship claim

To successfully assert that you are entitled to a larger share of surplus funds based on a survivorship interest, you should be prepared to produce:

• The recorded deed(s) showing the survivorship language (full recorded instrument, including recording information).
• Certified copy of the death certificate for the deceased co‑owner (if survivorship is asserted post‑death).
• Title history or chain of title showing the sequence of ownership and recordings.
• Court documents from the foreclosure (order approving sale, sheriff’s return, surplus fund handling) and any notices sent to interested parties.
• Any affidavits of survivorship, letters of administration, or probate filings if the title or claims were disputed.

Procedural steps to claim the surplus

1. Locate the foreclosure record and the court or sheriff who handled the sale. Identify where surplus funds were deposited or whether a distribution order was entered.
2. Gather documentation: recorded deed(s), death certificate, identity documents, and proof of your ownership claim.
3. File a written claim with the court or the officer holding the surplus funds, following the procedures and deadlines the court sets. If a distribution order has already been entered and you were not notified, you may need to ask the court to reopen the distribution or to allow a late claim.
4. If competing claims exist, you may need to ask the court to determine entitlement through an interpleader, declaratory judgment, or related proceeding. Expect the court to consider deed language, recording priority, timing of death, and lien priority.

Common legal issues and defenses you may face

• Ambiguous deed language: If the deed fails to use unmistakable survivorship language, the court may interpret the owners as tenants in common rather than joint tenants with survivorship.
• Recorded liens and encumbrances: Liens recorded before survivorship vested may remain enforceable against the property or proceeds, reducing or eliminating any surplus.
• Failure to file timely claims: Courts and sale officers often set deadlines for surplus claims; missing those deadlines can bar recovery.
• Creditor actions: A creditor of a deceased co‑owner may have obtained a judgment or lien that affects proceeds.

Practical example (hypothetical)

Hypothetical: Alice and Bob take title to a house by deed that expressly grants title to “Alice and Bob as joint tenants with right of survivorship.” Bob alone later borrows money secured by a mortgage and defaults; the lender forecloses and the foreclosure sale generates $30,000 more than required to pay the lender and prior record liens.

If Bob died before the lender completed the foreclosure sale and the survivorship language was effective, title vested in Alice when Bob died. Alice can present the recorded deed and Bob’s death certificate to claim the surplus as the owner. If the sale occurred while Bob was alive, the surplus distribution will depend on the status of liens and claims at the time of sale; Alice may still be able to claim a share if the foreclosure extinguished Bob’s interest but left a residual ownership interest for Alice, but the outcome will depend on the exact facts and court rulings.

Where to find South Dakota statutes and rules

South Dakota’s codified laws and court rules govern property recording, foreclosure procedure, and court distributions. For general reference to the state statutes and to search for relevant provisions concerning real property, foreclosure procedure, and distribution of sale proceeds, see the South Dakota Codified Laws: https://sdlegislature.gov/Statutes/. If your matter involves a judicial foreclosure, the circuit court orders and local practice will control deadlines and filing requirements.

When you should consult an attorney

If the surplus is significant, multiple parties claim the funds, deed language is ambiguous, or deadlines were missed, you should consult a South Dakota attorney who handles real estate and foreclosure matters. An attorney can review recorded documents, identify priority issues, prepare and file timely claims, and represent you if the court must decide competing claims.

Disclaimer: This article provides general information about South Dakota law and is not legal advice. It does not create an attorney‑client relationship. For advice about your specific situation, contact a licensed attorney in South Dakota.

Helpful Hints

• Start with the recorded deed: pull a certified copy from the county register of deeds to confirm exact wording about survivorship.
• Obtain the death certificate promptly if survivorship is being claimed after a co‑owner’s death.
• Get the foreclosure file: secure copies of the sheriff’s return, court order approving sale, and any distribution order so you know where the surplus is and who was notified.
• File your claim early: courts and sale officers set deadlines — missing them can block recovery.
• Document chain of title: collect every recorded instrument that affects ownership or liens so you can prove priority.
• Consider title insurance or a title search if competing claims exist — a title company can often quickly reveal recorded liens and judgments.
• Be prepared for contested proceedings: if another party disputes your claim, you may need a court hearing to resolve entitlement.
• Consult a local attorney when in doubt — real property and foreclosure law turn on precise facts and timing.