The Florida homestead is one of the most powerful asset protection tools for judgment debtors. The Florida constitution exempts an unlimited amount of equity in a debtor’s homestead, subject to certain acreage restrictions.
To exempt a residence from creditor claims, the Constitutional homestead clause requires that a debtor must currently reside in the property as their principal residence and must intend to stay there permanently.
The immigration status of foreigner moving to Florida creates interesting legal issues in the area of Florida homestead protection. There are many court decisions that held that people who are illegal immigrants, without any right to reside permanently in Florida, may not claim a homestead exemption. The courts held that a debtor without legal residency status under U.S. immigration law may not subjectively intend to live permanently in a Florida homestead.
In the recent bankruptcy case, the debtor was not a U.S. citizen and had made no application for permanent residency. The debtor’s daughter, on the other hand, had enrolled in the DACA program and had also applied for a “green card.” The daughter married a U.S. citizen who lived with the daughter in the debtor’s home.
Not the Debtor’s Residence
One commonly overlooked aspect of the Florida homestead is that the exemption protects a debtor’s interest in a residence even when it is only the debtor’s family that lives in the residence.
There are several Florida decisions holding that a debtor may assert homestead protection if a member of the debtor’s immediate family lives in the property even if when debtor resides elsewhere.
In this case, the court permitted the non-citizen debtor to exempt the family home under Florida’s homestead exemption. The court held that the daughter’s DACA application and green card application demonstrated sufficient intent to live permanently in Florida even though she had not yet attained legal residence. Because the daughter deserved homestead protection, the non-citizen debtor could exempt the home to protect the debtor’s family member living in the property.
About the Author
Jon Alper is an expert in asset protection planning for individuals and small businesses.
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