New Massachusetts Homestead Act, Effective March 16, 2011

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Author:
Robert H. Ryan, Esq., Bove & Langa, P.C.

On December 16, 2010, Governor Patrick signed Senate Bill 2406, AN ACT RELATIVE TO THE ESTATE OF HOMESTEAD (hereinafter referred to as the “Act”),[1] which is a complete revision of the Massachusetts homestead law. Although the statute will still be known as M.G.L. c. 188, the substantive provisions are much improved and, for the most part, clearer. This summary is intended to provide highlights to probate and trust and estate practitioners so that they may become familiar with changes that will become effective on March 16, 2011 (per Massachusetts legislative rules, laws generally become effective 90 days after the Governor signs the law).

There has been considerable discussion regarding homestead protection during the past few years by many practitioners and several articles have appeared in Massachusetts legal publications highlighting problems with the law. Many of these problems have been addressed by the Act.

Impact of Trust Ownership of Principal Residence on Homestead Declaration Under the Old Law

In a typical estate plan involving the use of trusts, the transfer of title of a principal residence is often done without proper consideration given to the issue of homestead protection. For several years, some practitioners have believed that a properly recorded homestead declaration on a principal residence could be preserved by reserving the homestead when a transfer of the principal residence was made to a trust. The authority generally cited for this position was c. 188 §7, where reference is made to termination of a homestead “by a deed conveying the property in which an estate of homestead exists, signed by the owner and the owner’s spouse, if any, which does not specifically reserve said estate of homestead {emphasis added}.” Accordingly, some practitioners believed that by specifically reserving a homestead when conveying the principal residence to a trust, the principal residence held in the trust would be protected by a homestead declaration.

However, it is understood that the Land Court has strictly relied on the ruling in Bristol County v. Spinelli [2] that a homestead cannot apply to registered land held in trust. Therefore, there has been a question as to whether the Land Court would recognize the reservation of a homestead declaration for a conveyance of registered land to a trust. Since Spinelli did not address recorded land, some practitioners have also believed that a homestead declaration might be effective for recorded land conveyed to a trust.

Who is Protected by a Homestead Declaration Under the Old Law?

A further issue of concern has been the determination of who benefits from the protection afforded by a homestead declaration. It is interesting to note that the old law clearly states that a c. 188 §1 declaration applies to a “family” as defined in the statute, which includes the declarant’s children and spouse. For c. 188 §1 purposes, the statute applies even if a child is an adult. However, c. 188 §4 provides for the continuation of the homestead upon the death of the declarant. But in that instance, c. 188 §4 refers to the “minor” children of the declarant, raising a valid question as to whether a new homestead must be declared by the surviving non-declarant spouse in order to provide protection to an “adult” child who is a member of the family.

If a couple owns a property as tenants-in-common, joint-tenants, tenants-by-the-entirety, or life tenants, the statute prior to the revision is clear that they are a family and a family can only record one c. 188 §1 homestead. Therefore, there is often a question as to which spouse should record the declaration of homestead. Generally, if the declarant spouse dies, the surviving spouse is protected. However, a c. 188 §1A elder and disabled homestead only applies to the owner who declared it and the homestead protection terminates at the same moment the c. 188 §1A declarant dies.

Furthermore, at times there has been confusion in some of the Registries of Deeds as to whether each non-spouse co-owner of a principal residence may file a homestead declaration. In response to the uncertainty, the Chief Title Examiner for the Land Court issued a memo to the Registries of Deeds, dated August 25, 2006, which confirmed that multiple homestead declarations may be filed by unrelated co-owners.

Questions About the Old Homestead Statute

As suggested by the above overview of key homestead issues, many questions about the old homestead statute have needed to be addressed, such as:

1) Why isn’t the homestead protection automatic?

2) How much equity is protected by the homestead declaration if there is more than one owner?

3) For estate planning purposes, does a homeowner have to choose between taking advantage of trust planning or homestead protection?

4) Is a homestead terminated by transfers within the family or upon the death of the declarant?

5) Are the proceeds from a sale of the principal residence or insurance for a casualty loss to a principal residence protected by a homestead?

6) Does the waiver of homestead in refinancing documents waive the homestead protection against all creditors?

7) Who should file the homestead? Should it be the spouse with greater exposure?

Key Highlights of the New Law Addressing These Questions

Automatic Homestead Protection

In response to concern that many homeowners are not aware of the requirement that a formal filing must be made in order to benefit from the homestead statute, the Act provides for an automatic allocation of homestead protection to a property that is the principal residence of the owner. However, the amount of automatic protection is limited to $125,000 of equity; a homeowner must still file a homestead declaration to benefit from the full $500,000 of equity homestead protection. The automatic homestead will apply to all existing principal residences as of March 16, 2011.

Clarification of Extent of Protection for Multiple Owners

The Act clarifies that although multiple owners of a principal residence may benefit from homestead protection, the aggregate protection (not including the enhanced protection for elder or disabled owners) is limited to the $500,000 homestead amount. However, in the case of a married couple who can BOTH benefit from what is known as an elder and disabled homestead, the aggregate protection for the principal residence may be increased to $1,000,000 of equity. In the case of non-married co-owners of a principal residence (e.g. sibling co-owners) who ALL file for the elderly or disabled homestead, the aggregate protection is the product of $500,000 of equity multiplied by the number of owners who qualify for the elderly or disabled homestead. Depending on the circumstances, the aggregate protection for a property could be $125,000, $500,000, $750,000, $1,000,000, or even greater.

Finally – Homestead Applies to a Principal Residence Titled in Trust

In recognition of the extensive use of trusts to hold title to principal residences, the Act finally extends the benefit of homestead protection to principal residences for which title is held in trust. In order to obtain such protection, the trustee must file a declaration of homestead stating, among other things, the names of the beneficiaries who seek to obtain such homestead protection, and the fact that the property is their principal residence.

All in the Family

The Act provides that the transfer of a principal residence between family members does not terminate an existing homestead, even if the new deed fails to reserve the homestead upon the transfer. In addition, a homestead existing at the death or divorce of a person holding a homestead shall continue for the benefit of his or her surviving spouse or former spouse and minor children who occupy or intend to occupy said home as a principal residence. However, any adult child who has an ownership interest in the principal residence is required to file his or her own homestead declaration to take advantage of the increased protection of $500,000.

Sales and Insurance Proceeds Relating to Homestead Property are Protected

Finally resolving an age-old question, the proceeds from the sale of a principal residence, or the insurance proceeds from a principal residence that suffers a casualty loss, are protected by the homestead in order to purchase a new principal residence or repair a damaged one. The proceeds from a sale are protected for the period of one year from sale of the current principal residence. Insurance proceeds are protected for a two-year period from receipt of the proceeds.

Mortgage Waiver of Homestead is Just That

Another age-old question relates to whether the apparent blanket waiver of a homestead in mortgage documents terminates the protection of a homestead against all creditors. The Act provides the sensible answer that a mortgage does not terminate a previously filed homestead but only subordinates the homestead to the specific mortgage at issue.

Simple Solution to Which Spouse Files the Homestead

To resolve the question of which spouse should file the homestead the Act chooses a simple solution – it requires that both spouses who have an ownership interest in the principal residence sign the declaration of homestead. In addition, the declaration must identify each person receiving homestead protection, including the name of a spouse who may not be an owner. The declaration must also state that each person occupies, or intends to occupy, the property as his or her principal residence.

New Act – New Questions

1) Does an existing estate of homestead in effect March 16, 2011, continue in full force and effect?

• Yes, even if it does not comply with the execution requirements of the Act (e.g., only one spouse named in the deed signed the declaration under the homestead statute before the revisions, whereas the Act now requires both spouses whose names are on the deed to sign the declaration).

2) Do I still need to file a Declaration of Homestead if I intend to file for bankruptcy?

• Yes, if you want to obtain the full exemption amount available under the Act rather than the lower exemption amount available per the automatic homestead protection.

3) Will the Homestead Declaration now apply against pre-existing debts without the need to file for Bankruptcy?

• Yes, and this is a big change in the law.

Massachusetts Issues Guidance and Forms

The Secretary of the Commonwealth has recently published guidance and forms for filing a Declaration of Homestead under the new law.  Each can be found HERE.
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[1] There has been some confusion when looking to read the Act on the State Legislative website. Please note the actual text of the final version of Senate Bill 2406 (186th Session 2009-2010) is set forth at House Bill 4878 (186th Session 2009-2010), pursuant to a House Amendment.  The new Act is set forth at Session Laws, 2010, Chapter 395, AN ACT RELATIVE TO THE ESTATE OF HOMESTEAD.

[2] 38 Mass. App. Ct. 655 (1995).

12 Comments

LynnBuskey

Hi Bob – Have you thought more about my question regarding joint owners and a trust?
Each joint owners can have unallocated protection, but the beneficiaries of a trust cannot.

So if, for example, a husband and wife transfer into a realty trust, they are forced to have an allocated portion of protection (presumably $250k each).

Also, outside of trust, they have an unallocated $500k (either one can claim the entire protection is my understanding). But what if H claims it for a debt and then W tries to claim it for another debt? What if H claims $400k of protection – does W have $100k?

Marlee

Can anyone comment on situations where joint tenants can add the additional $250,000 to their exemption amount?

Anonymous

What about a revocable living trust as beneficiary of the Realty Trust? For purposes of completing a new Declaration of Homestead form, should the beneficiary claiming the homestead just be listed as the Donor/Beneficiary of the revocable living trust?

Bob Ryan

In Response to the comment from Lynn Buskey on March 15, 2011 at 12:26PM

Several of us discussed your question regarding joint owners in trust and agree that is a trap for the unwary (but apparently not if they work at Buskey & McCarthy). A declared homestead exemption pursuant to Section 3 for a joint owner shall remain whole and unallocated pursuant to Section 1 of new c. 188 “Declared homestead exemption” clause (1)) whereas for a couple who owned the property in trust, as trust beneficiaries they would each have protection in proportion to the beneficial interest held in the trust (pursuant to clause (2) of “Declared homestead exemption”).

Regarding who gets what share of the exemption seems to be an open issue. The second sentence of Section 5(d) states that “In the event that spouses occupy or intend to occupy separate homes and valid declarations are recorded with respect to each, then both estate of homestead together shall not exceed the declared homestead exemption.” However, there is nothing in the new Act that indicates how the declared homestead exemption should be allocated between the separate homes. Therefore, it would seem the answer would be determined based on which creditor has a priority of claim over the principal residence. I would think that if the wife’s creditor has a claim that has priority over the husband’s creditor, then to the extent of the wife’s creditor’s claim, the exemption would be used with the balance available to the husband. However, keep in mind that if H&W own the residence as T by E (not just joint) then, with the exception of bankruptcy, a spouse’s creditor should not be able to force a sale of the residence – even if the claim exceeded the full $500k exemption.

Bob Ryan

In response to Marlee on March 16, 2011 9:59AM

The query regarding the “additional $250,000” highlights a provision in the Act that is causing much confusion. The provision for the potential to add $250,000 is in clause (4) (ii) of Section 1 “Declared homestead exemption.” However, it is important to note that clause (4) ONLY APPLIES when separate estates of homestead are declared pursuant to section 2 AND section 3 on the same home.

In interpreting this clause (4) it must be noted that Section 2 (d) states that no person shall concurrently hold rights under both section 2 and section 3. Therefore, joint tenants filing a declaration only under section 3 don’t actually have the opportunity to add $250,000 to their exemption amount. However, if one joint tenant qualifies to file a declaration under section 2 (elder/disabled) and the other joint tenant qualifies to file under section 3 (regular) then the formula in clause (4)(ii) dictates that IN SUCH EVENT, the declared homestead exemption for the owners TOGETHER shall be the sum of $500,000 multiplied by the number of declarations recorded pursuant to section 2 (which would be 1 x $500,000) plus $250,000 for an aggregate exemption of $750,000 which shall remain whole and unallocated among the owners.

Bob Ryan

In response to Anonymous on March 17, 2011 8:18am

In the case where a revocable living trust is the beneficiary of a Realty Trust, the “owner” to be identified pursuant to Section (a)(1) as being the “owner to be benefited by the homestead, and the owner’s non-titled spouse, if any” should be the beneficiary of the revocable living trust, as well as the beneficiary’s spouse if they are not a beneficiary. The reason the beneficiary is not the revocable living trust is based on the definition of “Owner” in section 1 which includes in the definition “a NATURAL PERSON who is a … holder of a beneficial interest in a trust.”

Marlee

Just wanted to say thank you for the clarification. I was getting to the $750,000 number, and am glad to have that confirmed. I was also under the impression that two elderly/disabled declarations could total $1,250,000 – so thank you for clarifying that this is not the case!

Marlee

For property that is owned by two people or trust beneficiaries, are practioners planning on filing two separate Declarations of Homstead? I see that the Sec. of State recommends this, but that seems silly considering the Declarations would be virtually the same.

(I understand that for one elderly and one non-elderly, two declarations would need to be filed)

Bob Ryan

In response to Marlee on March 20, 2011 7:38AM

You are not alone as there has been a general misunderstanding that two (2) elderly Declared homestead exemptions under Section 2 can result in protection totaling $1,250,000, which even at least one Title company recently stated in a presentation to its agents. I believe the only ownership which could result in protection of $1,250,000 would be if there were three (3) JOINT owners, two of which filed for protection under Section 2 and the third of which filed for protection under Section 3.

Bob Ryan

In response to Marlee on March 20, 2011 8:41am

You are correct that the Question and Answers Guide from the Secretary of the Commonwealth on page 6 states “If there is more than one owner, given that tenancy may change, it may be advisable to file a separate declaration for each tenant.” However, that is just a suggestion and the model form issued by the Secretary of the Commonwealth permits multiple owners to make the declaration on the same form.

For Trust beneficaires, since it is the Trustee that must file the declaration on behalf of all the trust beneficaires that occupy or intend to occupy the home as their principal residence, there does not seem to be any reason for the Trustee to file separate declarations for each beneficiary.

Anonymous

Hi,

My house was not covered by the a homestead and a creditor obtained a writ of execution against my property on June, 2010. Could you please advise if the new automatic homestead protects my home against this writ of execution placed on my house last year? I read your comment that the automatic homestead is does protect against pre-existing debt… But I am not sure if it applies to my case. Could you please help? Thank you.

Kerry

Anonymous, Although the contributors to this blog are unable to provide legal or tax advice, you might wish to contact the Boston Bar Association’s Lawyer Referral Service. Information about the Service is available at:

http://www.bostonbarlawyer.org/

The Service can also be reached by phone at (617)742-0625.

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