|Effective March 16, 2011 a new
Chapter 395, will provide changes to the current homestead
law, some of the changes include:
- Automatically protects up to $125,000 in home equity
- Protects up to $500,000 for those who file for homestead
- Allows spouses to both file - currently only one may
- Clarifies that there is no need to re-file after
- Provides coverage for homes kept in trusts.
According to the new law, all currently existing homesteads
shall continue in full force and effect.
The information below has been revised to incorporate the
changes made by Chapter 395 of the Acts of 2010.
As of March 16, 2011, the following new Homestead forms
must be used when filing:
Under Section 15, the VALOR Act, Acts of 2012, Chapter 108,
An Act relative to Veterans’ Access, Livelihood,
, and Resources, Massachusetts Homestead Law was amended to
provide additional protection to deployed service members in
mortgage foreclosures. This amendment relieves soldiers
from the burden of proof of deployment under the federal
Servicemembers Civil Relief Act and amends the Declaration of
Homestead to serve as notice to the mortgage holder.
This amendment prevents the commencement of a foreclosure
during a deployment. For more information click
here for the Declaration of Homestead for Homes owned by
here for the Declaration of Homestead for Homes owned by
The Homestead Act
Questions & Answers
Massachusetts General Laws, Ch. 188, §1-10
This webpage has been designed to answer some of the basic
questions asked every day pertaining to the Homestead Act. It
is not designed to provide any legal advice or address the
practical effect of a claim of Homestead. As in all areas of
the law, to fully understand what your rights are you should
consult an attorney of your choice.
If you have any further questions or concerns about how the
Registry of Deeds can assist you in filing a declaration of
Homestead, please do not hesitate to give the Registry of
Deeds office a call. We are here to serve you.
is a Declaration of Homestead/Homestead Protection?
An estate of homestead is a type of protection for a person’s
principal residence. There is an automatic homestead
protection of one hundred and twenty-five thousand dollars
($125,000) with respect to a home that does not declare a
homestead exemption with the Registry of Deeds. This automatic
protection may be sufficient to protect a deposit made upon
the estate; however, it is not likely to be sufficient
coverage to protect the full value of your home. In order for
to protect the value of their property up to five hundred
thousand dollars ($500,000) per residence, per family, you
must file a document called a “Declaration of Homestead”.
The form is filed at the Southern Essex District Registry of
Deeds, referencing the title/deed to the property.
can file a
The owner or owners of a home who occupy or intend to occupy the
home as a principal residence may 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. With respect to a
home owned by joint tenants or tenants by the entirety, the
homestead exemption remains whole and unallocated between the
owners. If there are more than two (2) joint tenant owners,
there is ability to add an additional two hundred and fifty
thousand dollars ($250,000) to the exemption amount for
additional joint tenants in certain cases. With respect to a
home owned by multiple owners as either tenants in common or
as trust beneficiaries, the homestead exemption shall 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.
home is held in trust, am I entitled to a
Yes, effective March 16, 2011, a holder of a beneficial interest
in trust is considered an “owner,” eligible for an estate
of homestead. If your home is owned in trust, only the trustee
shall execute a declaration of homestead on behalf of the
trust’s beneficiaries. The trust declaration and or trustee
certificates may also need to be recorded at the Southern
Essex District 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. The spouses, if any, of any
resident beneficiary must also be identified and each must
state whether they also occupy or intend to occupy the
premises as their principal residence.
do I file my
Each homestead must be filed in the county or district Registry
of Deeds in which the residence is located. To acquire a
homestead for a mobile home, you must file at the Registry of
Deeds in which the mobile home is located, also. The Registry
of Deeds must file your manufactured home declaration even
though you do not have a deed on record.
forms may be obtained at
www.sec.state.ma.us/rod and most Registries of Deeds. Links to
your county or district’s website are also available. Forms
are also available at legal stationery stores or your local
attorney’s office. Be sure the form is filled out completely
and has been properly notarized, and remember to enclose a
check for the thirty five dollars ($35.00) recording fee with
your completed form. Checks should be made payable to the
am I protected?
The real property or manufactured home which serves as an
individual’s principal residence upon filing a declaration
of homestead shall be protected. A principal residence is
considered to be the primary dwelling where an owner, and
their family if applicable, reside or intend to reside. The
declared estate of homestead shall protect against attachment,
seizure, execution on judgment, levy or sale for the payment
of debts to the extent of five hundred thousand dollars
($500,000) per residence, per family.
The declaration of homestead shall
benefit each owner named on the homestead and each of the
owner’s family members who occupy or intend to occupy the
home as their primary residence. Each family member shall have
the right to 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.
am I protected if I am 62 or older, or disabled?
The real property or manufactured home of persons sixty-two (62)
years of age or older or of a disabled person, regardless of
age, shall be protected against attachment, seizure, execution
on judgment, levy or sale for the payment of debts.
Real property or manufactured homes must serve as an
individual’s principal residence and each individual filing
as either elderly or disabled will be eligible for protection
up to a maximum amount of five hundred thousand dollars
($500,000) regardless of whether such declaration is filed
individually or jointly with one another. Elderly persons,
regardless of marital status, will be personally exempt up to
five hundred thousand dollars ($500,000) each. If two (2)
owners qualify for the elderly or disabled homestead
protection, the aggregate protection on the home shall be one
million dollars ($1,000,000).
Take note, each elderly or disabled homestead protection shall
terminate upon the person’s death. If there are multiple
owners and only one qualifies for an elderly or disabled
homestead protection, it may be advisable to file one
homestead declaration per owner in order 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, you
may wish to consult an attorney in order to adequately protect
the children’s right to use, occupy and enjoy the home. Be
sure to use the proper homestead form when you file.
does the Homestead law mean by a “disabled person”?
A disabled person is defined as an individual who has any
medically determinable permanent physical or mental impairment
that meets the disability requirement of supplemental social
security income. In most cases, an individual is considered
disabled – for the purpose of this law – 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,
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 must be attached to the homestead
form. 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.
my spouse and children covered, should I pass away?
Yes. Should the parent who declares the homestead die, the law
protects the family’s right to use, occupy and enjoy the
home. Married persons, regardless of whether they both own the
home, unmarried individuals and any minor children under the
age of 21 shall all be protected by the homestead. The
homestead protection shall continue despite the remarriage of
a surviving or former spouse.
I am over 62 and my spouse is under 62, should we both file?
Yes. Pursuant to M.G.L. Chapter 188, Section 2(b), an elderly
homestead protection for the individual over the age of 62 is
personal to the qualifying individual and will terminate upon
the transfer of their ownership interest, subsequent
declaration of homestead on another property, abandonment or
death. In order to ensure that the homestead
protection does not terminate unexpectedly for the spouse that
is under the age of 62, one homestead should be filed per
owner. This is a noteworthy change under the new law. Under
the former statute, filing a new declaration of homestead
voided any earlier homestead which could have opened up a
claim period for previous creditors, leaving homeowners
unprotected for a period of time. Effective March 16, 2011, a
second homestead declaration shall relate back to the first
declaration, thereby 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 and when you and your spouse
both qualify as elderly, you may aggregate each personal five
hundred thousand dollar ($500,000) protection to one million
dollar ($1,000,000). In all cases, you may want to consult an
attorney to take any personal matters into consideration.
declaration protect my home from being taken if I go into a
Liens imposed by the Massachusetts Department of Transitional
Assistance (formerly Public Welfare), as a result of the
payment of Medicaid benefits, are exempt from the homestead
protection. However, as of the printing of this pamphlet, 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. The rules and regulations regarding Medicaid are
complicated and constantly changing. You should consult an
attorney to address your specific concerns regarding Medicaid.
there anything I will not be protected from?
The following are exempt from the homestead law:
• a sale for
federal, state and local taxes, assessments, claims, and
• a mortgage on
• an execution
issued from the Probate Court to enforce its judgment that a
spouse pay for the support of a spouse, former spouse or minor
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;
• upon an
execution issued from a court of competent jurisdiction to
enforce its judgment based upon fraud, mistake, duress, undue
influence or lack of capacity;
• a lien on the
home recorded prior to the creation of the homestead.
happens to my
if I should re-mortgage or take out a second mortgage or home
An estate of homestead shall be automatically subordinate to a
mortgage on the home that is executed by all of the home’s
owners. For homeowners that have previously executed a
mortgage that included a waiver of the homestead protection,
the new law applies to the existing homestead. This
“waiver” shall be treated as a subordination and the
previously recorded homestead shall be in full force and
effect. As a result, there is no immediate need to file a new
homestead declaration after you refinance, take out a second
mortgage or a home equity loan. Although it is not necessary,
it may be advisable in certain circumstances. Under the new
law, you can file a new declaration without injury because the
subsequent declaration shall relate back to the previous
Where there are multiple owners, if a mortgage is executed by
fewer than all of the owners it shall still be subject to the
estate of homestead and shall be 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 those owners who
were not parties to the new mortgage shall remain intact.
I divide my time equally between my winter and summer
residences, can I declare a
No. A homestead can be declared only on an applicant’s
“principal residence”. A person can have more than one
residence but the statute only allows the protection on
one’s primary dwelling. There is no legislative intent to
allow the exemption to apply to a vacation home that is not
principal residence. For example, a husband cannot declare a
homestead exemption on one residence while his wife declares
the exemption on another family residence, unless each can
prove that the residence is their principal residence. If a
homestead declaration is filed for a vacation home and it is
not your principal residence or you do not intend to reside in
it as your primary dwelling, no protections shall apply. Also,
the subsequent homestead on the vacation home shall terminate
a prior homestead on an actual principal residence.
protection take the place of home insurance?
Absolutely not! The homestead protection is not a substitute for
home insurance or any other type of liability insurance. These
are separate and distinct types of protection. The homestead
protection will be effective after any liability insurance is
used to pay for any judgments that are related to liability
incurred under that particular insurance policy (e.g. home,
if my home is sold or damaged?
If the home is sold, the sale proceeds shall be protected by the
homestead for one (1) year after the date of the sale or on
the date when a new home is purchased with the proceeds, which
ever is earlier. If the home is damaged by a fire, for
example, the insurance proceeds are protected for two (2)
years after the date of the fire or on the date when the home
is reconstructed or a new home is purchased, which ever is
earlier. Pursuant to M.G.L. Chapter 188, Section 11(b),
temporary occupation of a trailer, manufactured home or other
temporary housing shall not be considered a principal
residency during the reconstruction or replacement of the
home. Proceeds do not need to be kept in an escrow account in
order to be afforded a homestead protection, although, it is
advisable to consult with an attorney as escrow may provide
other advantages. Any excess proceeds shall lose their
homestead protection after reconstruction or when a new home
declaration help protect a home against unsecured creditors in
Remember that the homestead declaration protects a homeowner only
from unsecured creditors. It will not offer protection from
first or second mortgage lenders and/or equity lenders who
possess a security interest in a home. If payments are not
current on these types of secured credit, a homeowner runs the
risk of losing the home to foreclosure proceedings.
In a Chapter 7 bankruptcy, or asset liquidation proceeding, a
homeowner is allowed to claim certain exemptions which
function as asset protection allowances. If a homestead
declaration is in place, and the state homestead exemptions
are claimed, a homeowner would be allowed to retain a much
greater portion of the proceeds from a liquidations sale of
the home than s/he would be allowed to keep under federal
bankruptcy law exemptions. This factor in turn decreases, or
perhaps even eliminates, the possibility that the homeowner
would be required to sell his/her home as part of Chapter 7
In all Chapter 13 bankruptcy proceedings, the court will require
a homeowner to repay some or all of the unsecured debt over a
three- to five-year period. You will be required to repay a
percentage of that debt at least equal to that which the
unsecured creditors would receive were a homeowner required to
proceed 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 the homeowner would be required to repay through a
Chapter 13 proposal.
can additional information be obtained about bankruptcy issues
as they apply to
This information can be discussed with qualified counselors from
the Consumer Credit Counseling Service, a private non-profit
agency with chapters nationwide. In
, contact the Consumer Credit Counseling Service of Southern
New England (CCCS/SNE) at: (800) 208-2227. CCCS/SNE is a part
of Money Management International and makes up the largest non
profit, full service credit counseling agency in the
. Since 1958, they have helped consumers find the tools and
solutions they need to achieve financial independence. You can
also visit their website at: www.moneymanagement.org.
form difficult to understand and fill out?
No. It simply asks for basic information. 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, please 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 Southern Essex District
Registry of Deeds. We are here to serve you.
Yes, the estate of homestead may be terminated by any of the
• 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;
• a 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;
of the home 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. Military service
shall not be considered abandonment;
• if the deed
is held in trust, either the trustee or a beneficial owner
identified in the homestead declaration records a termination
on the property held in trust.; or
• if a
subsequent homestead declaration is made on another home, such
as a vacation home, it shall terminate a prior homestead on an
actual principal residence.
Please note, 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 shall not affect the
homestead of the spouse who failed to sign.
is the filing fee?
The cost of filing the Declaration of Homestead is thirty five
dollars ($35.00). Checks should be made payable to the
. 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, the declaration must be executed
by both spouses. 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. You may wish to
consult an attorney if you have numerous owners.
can I tell if my real property is recorded or registered land?
In the large majority of cases your real property is recorded
land. Your evidence of title will be a quitclaim deed that has
a book and page number assigned by the Registry of Deeds.
If your property is registered land, you will have a certificate
of title number perhaps in addition to a land registration
office book and page. Instead of a quitclaim deed, you may
have received a certified copy of your certificate of title.
Prior to April 9, 1997, a large document called an owner’s
duplicate certificate of title was issued instead. If you are
not sure whether your real property is recorded or registered,
contact the Southern Essex District Registry of Deeds.
Chapter 395 of the Acts of 2010 states that all existing estates
of homestead in effect on the effective date of this Act,
March 16, 2011, shall continue in full force and effect
notwithstanding the repeal of any law under which they were
created. Additionally, all existing estates of homestead shall
now be governed by this new statute even though the execution
of each does not comply with the new M.G.L. Chapter 188,