The Homestead Act

This information is not designed to provide any legal advice or address the practical effect of an estate of Homestead. As in all areas of the law, to fully understand your rights, you should consult an attorney of your choice.

What is a Declaration of Homestead/Homestead protection?

An estate of homestead is a type of protection for a person’s principal residence. Even if you don’t declare a homestead exemption with the Registry of Deeds, you’ll still benefit from an automatic homestead protection of one hundred and twenty-five thousand dollars ($125,000).

While this automatic protection may be sufficient to protect a deposit made upon your estate, it’s not likely enough coverage to protect the full value of your home. To protect the value of your property up to five hundred thousand dollars ($500,000) per residence, per family, you must file a document called a “Declaration of Homestead”. You can file this form at the Registry of Deeds in the county or district where your property is located, referencing the title/deed to the property.

Who can file a Homestead protection?

• If you own and occupy (or intend to occupy) your home as a principal residence, you can file a homestead protection. A sole owner, joint tenant, tenant by the entirety, tenant in common, life estate holder, or holder of a beneficial interest in a trust may all be regarded as owners.
• If the home is held under a joint tenancy or tenancy by the entirety, the homestead exemption remains whole and unallocated between all owners. If there are more than two joint tenant owners, you can add an additional two hundred and fifty thousand dollars ($250,000) to the exemption amount in certain cases. If your home is owned by multiple owners, as either tenants in common or as trust beneficiaries, the homestead exemption will be distributed among the owners in proportion to each of their ownership interests.
• Manufactured or mobile home owners are also eligible to declare homestead protection under the provisions of the new statute.

My home is held in trust, am I entitled to a Homestead protection?

Yes, if you hold a beneficial interest in the trust. You are considered an “owner” and eligible for an estate of homestead in that case. When a home is owned in trust, only the trustee can declare a homestead on behalf of the trust’s beneficiaries. The trust declaration and or trustee certificates may also need to be recorded at the Registry of Deeds.

• In the declaration of homestead, the trustee must identify each of the beneficiaries to the trust that occupy or intend to occupy the premises as their principal residence. Any spouses of the resident beneficiaries must also be identified, and each must state whether they also occupy or intend to occupy the premises as their principal residence.

Where do I file my Homestead?

You can file your homestead declaration in the county or district Registry of Deeds where your residence is located.

• To acquire a homestead for a mobile home, also referred to as a manufactured home, you must file at the Registry of Deeds in which the mobile home is located. The Registry of Deeds must file your manufactured home declaration, even if you don’t have a deed on record. Forms are also available from the Secretary’s office, as well as at legal stationery stores or your local attorney’s office.
• Make sure all forms are filled out completely and properly notarized.
• The recording fee for homestead declarations is thirty-five dollars ($36.00). You can send a check with your completed form, payable to the Commonwealth of Massachusetts.

How am I protected?

The Homestead Act protects the property or manufactured home serving as your principal residence, which is considered the primary dwelling where you, and your family if applicable, reside or intend to reside. Homestead declaration protects against attachment, seizure, execution on judgment, levy or sale for the payment of debts up to five hundred thousand dollars ($500,000) per residence, per family.

Homestead declaration benefits each owner named on the homestead and any of the owner’s family members who occupy or intend to occupy the home as their primary residence. Each family member can use, occupy, and enjoy the home.

• The new law provides additional protections to spouses that are not listed as owners in their principal residences. For example, protection extends automatically to a new spouse where an unmarried person declared a homestead and later marries.
• Also, divorcing spouses are protected against the loss of homestead through termination or divorce. Neither divorce nor remarriage will affect the homestead of the spouse who still primarily resides in the home.
• If you are purchasing your new principal residence, your closing attorney must provide you, as a mortgagor, with notice of your right to declare a homestead protection. At that time, you will be asked to acknowledge receipt of this notice in writing.

How am I protected if I am 62 or older, or disabled?

If you’re sixty-two (62) years of age or older, or disabled regardless of age, the Homestead Act protects your real property or manufactured home against attachment, seizure, execution on judgment, levy or sale for the payment of debts. The real property or manufactured home must serve as your principal residence, and each individual filing as either elderly or disabled grants protection up to a maximum amount of five hundred thousand dollars ($500,000)—regardless of whether the declaration is filed individually or jointly with one another. Elderly persons, regardless of marital status, are personally exempt up to five hundred thousand dollars ($500,000) each. If two owners qualify for the elderly or disabled homestead protection, the aggregate protection on the home increases to one million dollars ($1,000,000).

• Note that any elderly or disabled homestead protection terminates upon the person’s death. If there are multiple owners, and only one qualifies for an elderly or disabled homestead protection, consider filing one homestead declaration per owner to protect the family’s right to use, occupy and enjoy the home.
• Additionally, if there are dependent minor children under the age of 21 living with all elderly or disabled homeowners, consult an attorney to adequately protect the childrens’ right to use, occupy and enjoy the home. Make sure to use the proper homestead form when you file.

What does the Homestead law mean by a “disabled person”?

The law defines a disabled person as an individual who has any medically determinable permanent physical or mental impairment that meets the disability requirement of supplemental social security income. You can learn more about these requirements from the Massachusetts State Supplement Program’s website.

• For the purpose of the law, an individual is considered disabled if he or she cannot engage in any gainful activity as a result of the physical or mental impairment.
• If you are declaring a homestead to benefit a disabled person, you must include either an original or certified copy of the disability award letter issued by the United States Social Security Administration, or a certification letter signed by a licensed physician registered with the Massachusetts Board of Registration in Medicine.
• Disabled persons must meet the disability requirements stated in 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C) as in effect at the time of recording.

Are my spouse and children covered, should I pass away?

Yes. If the parent who declares the homestead dies, the law protects the family’s right to use, occupy and enjoy the home.

• The law protects married persons (regardless of whether they both owned the home), unmarried individuals, and any minor children under the age of 21. Any homestead protections would continue even if the surviving spouse remarries.

If I am over 62 and my spouse is under 62, should we both file?

Yes. The law states that an elderly homestead protection for any individual over the age of 62 is limited to that qualifying individual. Protection would end upon the transfer of their ownership interest, subsequent declaration of homestead on another property, abandonment, or death. To avoid an unexpected loss of homestead protection for any spouse under the age of 62, you should file one homestead per owner.

• This is a change from prior homestead protection law. Under the former statute, filing a new declaration of homestead voided any earlier homestead. This opened up a claim period for previous creditors, leaving homeowners unprotected for a period of time. With the new law, a second homestead declaration would relate back to the first declaration, ensuring that the homeowners maintain their homestead protection.
• When your spouse turns 62 and qualifies for an elderly homestead protection, you may also consider filing another elderly homestead on their behalf. If you and your spouse both qualify as elderly, you may aggregate each personal five hundred thousand dollar ($500,000) protection to one million dollars ($1,000,000).
• In all cases, you may want to consult an attorney to take any personal matters into consideration.

Will my Homestead declaration protect my home from being taken if I go into a nursing home?

It depends. Any liens imposed by the Massachusetts Department of Transitional Assistance as a result of Medicaid benefit payments are exempt from the homestead protection.

However, as long as the recipient or the spouse of the recipient is alive, the Commonwealth will not look to the residence for reimbursement of Medicaid benefits.

If the surviving spouse is also the recipient of Medicaid benefits, the Commonwealth will file a claim for reimbursement from the estate for the entire amount of Medicaid benefits paid, once the surviving recipient has died. You should consult an attorney to address your specific concerns regarding Medicaid.

Is there anything I will not be protected from?

The homestead law does not protect against the following:

• Any sales for federal, state and local taxes, assessments, claims, and liens;
• Any mortgages on the home;
• Any executions issued from the Probate Court to enforce judgment that a spouse pay for the support of a spouse, former spouse or minor children;
• Any buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot where they stand;
• Any execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity;
• Any liens on the home recorded prior to the creation of the homestead.

What happens to my Homestead if I refinance, re-mortgage, or take out a home equity loan?

Any homestead declaration is automatically subordinate to a mortgage on the home that is executed by all of the home’s owners. If you previously executed a mortgage that included a waiver of the homestead protection, the new law applies to your existing homestead. This “waiver” is treated as a subordination, and the previously recorded homestead remains in full force.

As a result, you don’t need to immediately file a new homestead declaration after you refinance, take out a second mortgage or a home equity loan.

However, you may still want to refile in certain cases. Under the new law, you can file a new declaration without penalty because the subsequent declaration relates back to the previous declaration.

If there are multiple owners, any mortgage executed by fewer than all of the owners is still subject to homestead, and is considered superior only to the homestead estate of those owners who are parties to the new mortgage, their spouses and minor children, if any. The homestead protections of any owners who were not parties to the new mortgage would remain intact.

If I divide my time equally between my winter and summer residences, can I declare a Homestead on both?

No. You can only declare a homestead on your principal residence. You can have more than one residence, but the law only allows protection on your primary dwelling. There are currently no legislative plans to allow the exemption to apply to a vacation home that is not a principal residence.

• For example, a person cannot declare a homestead exemption on one residence while a spouse declares the exemption on another family residence, unless each can prove that the residence is their principal residence.
• If you file a homestead declaration for a vacation home and it isn’t your principal residence (or you don’t intend to reside in it as your primary dwelling), the law won’t cover the home. Also, the subsequent homestead on the vacation home would terminate any prior homestead on your actual principal residence.

Does the Homestead protection take the place of home insurance?

Absolutely not! Homestead protections do not replace home insurance or any other type of liability insurance. These are separate and distinct types of protection. Homestead protection applies after any insurance is used to pay for liability incurred under that particular insurance policy (e.g. home, automobile, etc.).

What if my home is sold or damaged?

If you sell the home, the law protects your sale proceeds for one year after the date of the sale, or on the date when you purchase a new home with the proceeds, whichever is earlier. If your home is damaged, the insurance proceeds are protected for two years after the date of the loss, or on the date when the home is reconstructed or you purchase a new home, whichever is earlier.

• If you need to occupy a trailer, manufactured home, or other type of temporary housing while your primary home is reconstructed or replaced, the law would not consider that location as principal residency. You would not need to keep proceeds in an escrow account to maintain homestead protection, but you should still consult with an attorney as escrow may provide other advantages.
• Any excess proceeds would lose homestead protection after reconstruction or when a new home is purchased.

How does the Homestead declaration help protect a home against unsecured creditors in bankruptcy proceedings?

Homestead declaration protects you from unsecured creditors and certain other debts or attachments, but it does not shield you from first or second mortgage lenders and/or equity lenders who possess a security interest in your home. If payments are not current on these types of secured credit, you risk losing the home to foreclosure proceedings.

• In a Chapter 7 bankruptcy, or asset liquidation proceeding, you are allowed to claim certain exemptions which function as asset protection allowances. If a homestead declaration is in place, and state homestead exemptions are claimed, you would retain a much greater portion of the proceeds from a liquidations sale of the home than you would likely keep under federal bankruptcy law exemptions. This factor decreases, or perhaps even eliminates, the possibility that you would need to sell the home in Chapter 7 proceedings.
• In all Chapter 13 bankruptcy proceedings, the court would require you to repay some or all of the unsecured debt over a three- to five-year period. You would need to repay a percentage of that debt at least equal to however much the unsecured creditors would receive under Chapter 7 liquidation regulations. By increasing the amount of the home’s exemption, the homestead declaration decreases the proceeds which would become available for repaying unsecured creditors through the Chapter 7 alternative. This may decrease the percentage of the unsecured debt you would be required to repay through a Chapter 13 proposal.

Where can I find more information about bankruptcy issues as they apply to Homestead protection?

You can speak with qualified counselors from Money Management International, a private non-profit agency with chapters nationwide.

• In Massachusetts, contact MMI at (800) 208-2227. They make up the largest non-profit, full service credit counseling agency in the United States. Since 1958, they have helped consumers find the tools and solutions they need to achieve financial independence.

Is the Homestead form difficult to understand and fill out?

No. It simply asks for basic information. Just make sure you use the right form based on ownership.

• If your home is held in trust, the trustee(s) must fill out the form entitled Declaration of Homestead for Homes Owned by Trustee(s).
• For all other owners, or natural persons, fill out the form entitled Declaration of Homestead for Homes Owned by Natural Persons.

Be careful when writing the book and page number or certificate of title number of your deed or title. If you need assistance locating your deed to determine this information, please contact the Registry of Deeds office.

Can my Homestead be terminated?

Yes, homestead protections would end for any of the following reasons:

• If the home is conveyed by deed to a non-family member, and the deed is signed by the owner and if applicable, a non-owner spouse or former spouse residing in the home as a principal residence at the time the deed is drafted;
• If any recorded release of the homestead is signed and acknowledged by the owner and if applicable, a non-owner spouse or former spouse residing in the home at the time of the release;
• If the home is abandoned as a principal residence by the owner, owner’s spouse, former spouse or minor children, only as they apply to rights of the persons who abandoned the home;
  NOTE: Military service is not considered abandonment under the law.
• For any deeds held in trust, if either the trustee or a beneficial owner identified in the homestead declaration records a termination on the property held in trust;
• If a subsequent homestead declaration is made on another home, such as a vacation home. This new declaration would terminate a prior homestead on an actual principal residence. Note that there are a number of transfers that do not terminate an already declared homestead.
• Any transfer of the property between spouses, former spouses, co-owners, a trustee and a beneficiary or a life tenant and a remainderman will not terminate a previously declared homestead.
• Also, if a conveyance or release is made without the signature and acknowledgement of a non-owner spouse or former spouse who is residing in the home at the time the principal residence is conveyed or released by an owner, it would not affect the homestead of the spouse who failed to sign.

What is the filing fee?

Filing a Declaration of Homestead costs thirty-five dollars ($36.00). Personal checks should be made payable to the Commonwealth of Massachusetts.

• Each owner, whether or not they qualify for an elderly or disabled exemption, must sign and acknowledge the document under the penalties of perjury before a notary public.
• If the home is owned by two spouses, both must sign the declaration form.
• If the home is owned by one spouse independently, only that spouse needs to sign the declaration. However, they must declare their spouse and state the spouse’s name.
• If there is more than one owner, given that the tenancy may change, it may be advisable to file a separate declaration for each tenant. Consider consulting an attorney if you have numerous owners.

How can I tell if my real property is recorded or registered land?

In most cases, your real property is recorded land. Your evidence of title will be a quitclaim deed with a book and page number assigned by the Registry of Deeds. If your property is registered land, you may receive a copy of your certificate of title, in addition to a land registration office book and page number, instead of a quitclaim deed.

• Prior to April 9, 1997, the Registry issued large documents called owner’s duplicate certificates of title.

If you are not sure whether your real property is recorded or registered, contact the Registry of Deeds office.

If I filed before the new law passed, do I need to refile?

If you filed a homestead declaration prior to March 16, 2011, your $500,000 protection will continue to apply. You don’t need to re-file your homestead protections. The new law creates an automatic $125,000 protection on homes that do not have a homestead declaration filed at the Registry of Deeds in order to safeguard deposits and situations where a declaration may be incorrectly filed. Homestead protections now extend to pre-existing debts and the proceeds of a sale or insurance coverage.