Amended Homestead Act Offers New Protections For Massachusetts Homeowners

On December 16, 2010, Governor Deval Patrick signed important new amendments to the Homestead Act. These changes will take effect on March 16, 2011.

A Declaration of Homestead is a legal document filed in the Registry of Deeds informing the public that the homeowner is asserting his or her rights to protect the home from subsequent creditors. When a Declaration of Homestead is filed with the Registry of Deeds, a person’s primary residence is protected against subsequent attachment, suit, or bankruptcy to the extent of $500,000 of equity per residence, per family.

A Declaration of Homestead does not cover some obligations, such as debts relating to the purchase of the home, tax obligations, and child support obligations.

Under the amended Homestead Act, a Massachusetts homeowner will be provided with an automatic $125,000 of protection. If the homeowner files a Declaration of Homestead with the Registry of Deeds, that protection is increased to $500,000. For joint tenants and married couples who own their home as tenants by the entirety, in order for each to obtain this protection, the declaration must be signed by both tenants or spouses.

In addition to increasing the amount of the homestead exemption, the new law corrects recognized deficiencies in the former statute. The law now allows a homeowner who holds his or her home in trust to file a Homestead Declaration, and it is also now possible to file a Declaration of Homestead on a two, three, or four family home. Homestead protection will now pass on to the surviving spouse and children who live in the home. A homeowner will no longer have to file another Declaration of Homestead after a refinance.

Also, the law now allows homeowners to sell their primary residence, yet maintain the same homestead protection on the proceeds of the sale of the home until the sooner of one year from the time of the sale or when a new primary residence is purchased.

All existing Declarations of Homestead ineffect on the effective date of the act will be grandfathered in and governed by the new law regardless of compliance with the new execution requirements.

If you have any questions concerning the Homestead Act and the latest amendments, please contact Robert M. Schlein, chair of the Real Estate Practice Group at 617 456 8098 or rschlein@princelobel.com, or Jennifer Fleming, chair of the Estate Planning and Probate Practice Group at 617 456 8058 or jfleming@princelobel.com.