Persons Entitled to Homestead Exemption

A homestead is a dwelling with land and buildings occupied by an owner as a home and exempted by a homestead law from seizure or sale for debt.  Homestead rights are created by statutory provisions.  The purpose of homestead exemption is to provide a family peaceful residence irrespective of financial adversities.  The law gives greater significance to the preservation of the homestead than payment of debts.

Most of the statutes provide that every person at the age of eighteen or over; and married or single, residing within the state can hold a homestead exempt from attachment, execution and forced sale.  It implies natural persons regardless of marital status or lack of dependents.  However, some statutes restrict homestead exemption to some combination of ranks.  Restrictions are generally on the basis of marital status, head of a family and dependents.

Some jurisdictions limit homestead rights to head of the family.  For example: In the State of Arkansas to establish homestead following elements must be established:

  • the party claiming the exemption must be the head of a household or married;
  • the property must be occupied as a home; and
  • the party claiming the exemption must be a resident of the state of Arkansas[i].

A head of a family includes the head of a house hold.  The homestead claimant need not be a husband or parent.  Homestead must be something more than a mere aggregation of individuals residing in the same house.  Head of the family must be the head of a household[ii].  For the purpose of acquiring homestead privileges, there can be only one head of a family.  However, after divorce, each party is head and is entitled to hold the homestead.  The head of a family must have a right to direct and control the affairs of the household.  The head of the family supports other members of the family.  The word householder includes any persons, married or unmarried, maintaining separate residences or living quarters[iii].  All debtors are not entitled to a homestead exemption.  Only debtors permitted by state law to claim homestead exemptions are entitled[iv].

Most of the statutes permit only residents to claim the homestead exemption[v].  Dispute arises when the residence and homestead are in different states.  An out of state homestead is protected under a law not limiting such protection to persons holding property within the state.  However, in states where such protection is not provided a homestead holder must be a resident of the state.  Additionally, s/he must occupy a home in the state.  Person intending to make a property one’s permanent residence can also claim protection.

Generally, it is not necessary that a homestead claimant be married.  Some constitutional or statutory provisions prohibit the right to claim the homestead exemption to unmarried persons.  However, statutes requiring a homestead claimant to be the head of a family, allows single, unmarried person to be homestead holder.  Condition is that other members are dependent on the head of the family.  Generally, a homestead right is not given to a man and woman living together in an unmarried status[vi].  A married couple can claim a homestead exemption on the basis of their marital status.  In case of married couples, parties share the single homestead exemption.  Moreover, each spouse can claim full exemption.  Spouses enjoy homestead rights regardless of property ownership[vii].  Moreover, a person married to a debtor is entitled to an exemption on the basis of a homestead declaration.  The declaration of homestead by a non debtor spouse terminates and extinguishes the debtor’s homestead.  This is to restrict a debtor from enjoying both spouses’ homestead exemptions.  After declaration spouses are entitled to a single homestead exemption[viii].

Head of the family for homestead purposes can be a husband or wife.  A wife contributing to support dependent husband, qualifies as the head of the family for homestead exemption[ix].

Additionally a parent can be a homestead holder.  The dependent child must be living with the parent on the homestead property.  The parent as head of the family must be controlling the family.  Moreover, a grandparent having a grandchild depending upon him/ her for support can be a head of the family for the purpose of homestead exemption[x].  An adult child supporting a parent can be a head of the family for homestead exemption purposes.

For determining the meaning of family headship, the courts usually adopt two alternatives.  The party claiming exemption must show:

  • a legal duty arising out of the family relationship at law to maintain the family; or
  • Continuing communal living by at least two persons with one person recognized as being in charge of the homestead[xi].

[i] In re Warnock, 323 B.R. 249, 252 (Bankr. W.D. Ark. 2005).

[ii] Harbison v. Vaughan, 42 Ark. 539 (Ark. 1884).

[iii] In re Thompson, 4 B.R. 823 (E.D. Va. 1980).

[iv] In re Marsh, 26 B.R. 94, 95 (Bankr. E.D. Va. 1982).

[v] Brinson v. Edwards, 94 Ala. 447, 454 (Ala. 1891).

[vi] Senegar v. La Vaughan, 230 S.W.2d 311 (Tex. Civ. App. 1950).

[vii] United States v. Rodgers, 461 U.S. 677, 685 (U.S. 1983).

[viii] In re Garran, 274 B.R. 570 (Bankr. D. Mass. 2002).

[ix] State ex rel. Lucas v. Houck, 32 Neb. 525 (Neb. 1891).

[x] Cross v. Benson, 68 Kan. 495 (Kan. 1904).

[xi] Killian v. Lawson, 387 So. 2d 960, 962 (Fla. 1980).


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