Categorized | Legal Matters

State’s homestead law and newly enacted changes

By Cathleen Summers

We are often contacted by clients and asked to explain the homestead law here in Massachusetts. What are the advantages of declaring a homestead on my home? Can I claim a homestead on my second home? This article will provide you with the most current information regarding the homestead law, including a review of the changes that were made to the law on Dec. 17, 2010. This version of the homestead law seeks to modernize the act and resolve a number of issues that arose over the years regarding the prior version of the statute.

To understand the provisions of the new law it is necessary to understand the concept of tenancies. Tenancy in a property describes how multiple owners hold their interests in relation to each other. The tenancy is stated in the document creating the ownership (e.g “joint tenancy” and “tenancy in common”). If no tenancy is stated, a tenancy in common is created. Tenants in common can be between two or more persons who are related or who are unrelated.

Ownership can be held in equal shares or unequal shares and co-tenants have the right to possess the property by one tenant or by all the tenants. Upon death, the interest of the deceased co-tenant will pass to the co-tenant’s heirs by the terms of their will, or if none, by intestate law.

Joint tenants hold a single unified interest in the entire property. Joint tenants have equal shares in the property and may occupy the property subject only to the rights of other joint tenants. If a joint tenant dies, their interest passes to the remaining joint tenants.

A tenancy by the entirety is exclusively available to married couples. It also has a right of survivorship. Neither spouse may independently convey their interest. There is protection for each against creditors of the other.

Under the new law, which will become effective on March 17, all Massachusetts homeowners will receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence without having to do anything.

Additionally, the following changes/clarifications have been made to the law:

•All Massachusetts residents are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds. This is the same amount of protection that a recorded homestead provided under the prior law and it supersedes the new automatic protection.

•For married couples, both spouses will now have to sign the form.

•If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse. Homesteads now pass on to the surviving spouse and children who live in the home.

•The existing “elderly and disabled” homestead will remain available at $500,000.

•Homesteads are now available on 2-4 family homes, and for homes in trust, condominium units, co-operative housing and manufactured homes.

•You do not have to re-file a homestead after a refinance.

Have questions or concerns about the homestead law, contact us and we’ll prepare and file it for you.

Cathleen H. Summers, a founding partner of Summers, Summers & Associates, P.C. an elder law, estate and life planning law firm located in Acton, MA. She may be reached at www.summersatlaw.com or by calling 978-263-0006. . Archives of articles from previous issues can be read at www.fiftyplusadvocate.com.

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