The Law Office of Patricia S. Nelson
Articles
Homestead Exemptions
Help Protect Your Home from Creditors
Massachusetts law allows homeowners to protect $300,000.00 (and in some cases more) of the value of their homes from certain creditors. In order to claim this protection, the homeowner must file a form with the registry of deeds where his or her property is located.
Who can file a Homestead Exemption?
Under Massachusetts General Laws chapter 188, section 1, anyone who has an ownership interest in a home, and who occupies or intends to occupy the home as a principal residence, is entitled to claim an exemption. Unless the homeowner is age 62 or older or disabled (see discussion below) the exemption is clearly limited to one person per household. In the case of married persons who hold title jointly or as tenants by the entirety (as most people married persons do) only one spouse may sign and file the exemption. In the case of unmarried persons who own as tenants in common (upon death, their interest is transferred with the rest of the estate, rather than going directly to the other owner), at least one case suggests that both owners may file an exemption.
If you own and occupy property which is held by a trustee of a trust, you should consult an attorney to determine whether or not you may file an exemption.
Who is entitled to claim elderly or disabled homestead exemptions?
Massachusetts General Laws, chapter 188 section 1A allows each person who is:
to file an exemption. Elderly and disabled exemptions are not subject to the "one per household" limit of exemptions under General Laws chapter 188, section 1.
In the case of a Declaration filed for a disabled exemption, the declaration must be filed with either:
(Note: Failure to attach proper documentation, even if the person actually qualifies, may result in the disqualification of the exemption. Shamban v. Masidlover, 429 Mass 50, 705 N.E.2d 1136 (1999).)
When should I file an exemption?
Homestead exemptions only apply to "debts" incurred after the recording or filing of the declaration of homestead. It is therefore important for homeowners to record the exemption as soon as possible, preferably at the time of sale.
If you refinance your mortgage, you may want to file another declaration, since most mortgages contain a clause waiving "all rights of homestead" in the premises.
Does the Homestead Exemption cover all debts?
No. Governmental obligations such as taxes and liens for water and sewer use charges are not covered. There are other exceptions as well, detailed in the statute, such as for debts incurred in the acquisition of the property and court orders for spousal or child support.
How do I file a Homestead Exemption?
You can obtain the form and file a homestead exemption at most registries of deeds. The declaration must be filed in the registry of deeds where the property is located.
Most people have their attorney handle the filing of homestead exemption declarations. This avoids technical errors in the filing of the form which would disqualify the exemption, such as errors in the reference to the property or failure to use the proper form or attach adequate documentation. This will also maximize the number of exemptions claimed. In addition, using an attorney will save you waiting on the long recording lines that occur in a number of the registries of deeds.
If you don't already have a homestead exemption or if you recently refinanced your home, consider filing a declaration of homestead and help protect your most valuable asset.
(C) Patricia S. Nelson March 10, 2003.
Who can file a Homestead Exemption?
Under Massachusetts General Laws chapter 188, section 1, anyone who has an ownership interest in a home, and who occupies or intends to occupy the home as a principal residence, is entitled to claim an exemption. Unless the homeowner is age 62 or older or disabled (see discussion below) the exemption is clearly limited to one person per household. In the case of married persons who hold title jointly or as tenants by the entirety (as most people married persons do) only one spouse may sign and file the exemption. In the case of unmarried persons who own as tenants in common (upon death, their interest is transferred with the rest of the estate, rather than going directly to the other owner), at least one case suggests that both owners may file an exemption.
If you own and occupy property which is held by a trustee of a trust, you should consult an attorney to determine whether or not you may file an exemption.
Who is entitled to claim elderly or disabled homestead exemptions?
Massachusetts General Laws, chapter 188 section 1A allows each person who is:
- 62 years of age or older; or
- Disabled - Available for each person with a "medically determinable permanent physical or mental impairment".
to file an exemption. Elderly and disabled exemptions are not subject to the "one per household" limit of exemptions under General Laws chapter 188, section 1.
In the case of a Declaration filed for a disabled exemption, the declaration must be filed with either:
- a disability award letter from the U.S. Social Security Administrator; or
- a letter signed by a licensed Massachusetts Physician certifying that the person meets the requirements of the statute.
(Note: Failure to attach proper documentation, even if the person actually qualifies, may result in the disqualification of the exemption. Shamban v. Masidlover, 429 Mass 50, 705 N.E.2d 1136 (1999).)
When should I file an exemption?
Homestead exemptions only apply to "debts" incurred after the recording or filing of the declaration of homestead. It is therefore important for homeowners to record the exemption as soon as possible, preferably at the time of sale.
If you refinance your mortgage, you may want to file another declaration, since most mortgages contain a clause waiving "all rights of homestead" in the premises.
Does the Homestead Exemption cover all debts?
No. Governmental obligations such as taxes and liens for water and sewer use charges are not covered. There are other exceptions as well, detailed in the statute, such as for debts incurred in the acquisition of the property and court orders for spousal or child support.
How do I file a Homestead Exemption?
You can obtain the form and file a homestead exemption at most registries of deeds. The declaration must be filed in the registry of deeds where the property is located.
Most people have their attorney handle the filing of homestead exemption declarations. This avoids technical errors in the filing of the form which would disqualify the exemption, such as errors in the reference to the property or failure to use the proper form or attach adequate documentation. This will also maximize the number of exemptions claimed. In addition, using an attorney will save you waiting on the long recording lines that occur in a number of the registries of deeds.
If you don't already have a homestead exemption or if you recently refinanced your home, consider filing a declaration of homestead and help protect your most valuable asset.
(C) Patricia S. Nelson March 10, 2003.
Copyright © 2018 Patricia S. Nelson