In short: The Rivera v. Estate of Thomas argument (Fla. 5th DCA, No. 5D17-626) asks who gets surplus funds from a foreclosure sale when the property had a life tenant who died and a remainderman: the decedent’s estate in summary administration, or the vested remainderman. We haven’t located a published decision. Florida’s surplus statutes give surplus to the owner of record as of the lis pendens.
When a foreclosure sale brings more than the debt, the surplus belongs to someone. When the owner has died, the probate court and the foreclosure court can collide.
The Case as Argued
According to the oral argument, the appellant held a vested remainder interest, subject to divestment, when the lis pendens was recorded. A probate summary administration for the decedent’s estate included the surplus from the judicial foreclosure sale. The appellant, joined by an assignee surplus recovery company, argued the surplus belonged to her as remainderman under §§ 45.031–45.035.
Outcome: We have not located a published decision for this appeal. Many appeals end in an unpublished affirmance or a dismissal. Check the court’s online docket before relying on any result. The case facts below come from the oral argument, not from a court opinion.
Florida’s Surplus Rules
- After a foreclosure sale, the clerk holds any surplus. The owner of record as of the date the lis pendens was recorded is presumed entitled to it, subject to claims of subordinate lienholders (§ 45.032).
- Claims must be filed within the deadlines set by § 45.032, and assignees and surplus trustees face strict rules (§ 45.033 and § 45.034).
Life Estates and Remainders
With a life estate deed, the life tenant’s interest ends at death and the remainder owners own the property. Whether a remainder is vested, contingent, or subject to divestment can determine who counts as an owner of record.
Lessons
- Heirs and remaindermen: check the clerk’s surplus records after any foreclosure on family property.
- Be wary of companies buying surplus claims at a discount.
- Coordinate the probate case and the foreclosure court so surplus isn’t paid to the wrong party.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. We have not located a published decision in this appeal, so treat the argument as illustration, not as the court’s ruling.
Foreclosure Surplus Funds — Does the Vested Remainderman Get the Money?
Go Deeper
- The Florida Foreclosure Sale: Timing, Redemption, Surplus Funds, and When You Have to Move
- Foreclosure After the Borrower Dies in Florida: Heirs, Probate, and Zombie Mortgages
- The Lady Bird Deed: The Safest Way for Florida Parents to Leave the House to Their Kids
Frequently Asked Questions
Who gets foreclosure surplus funds in Florida?
The owner of record as of the lis pendens is presumed entitled, subject to subordinate lienholders’ claims (§ 45.032).
Can an estate claim foreclosure surplus?
If the decedent was the owner entitled to it, the estate or heirs can claim it.
Does a remainderman have rights in foreclosure surplus?
That depends on the nature of the remainder and ownership at the lis pendens. It was the issue argued in Rivera.
What was the outcome in Rivera v. Estate of Thomas?
We have not located a published decision. Check the Fifth District docket for No. 5D17-626.
Talk to a Florida probate and surplus funds lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate appeal lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
