A Florida resident can temporarily move out of his Florida residence and still claim the residence as his homestead as long as he demonstrates the intent to return to the property as his permanent home. What happens if a Florida resident has to leave his house to serve prison time for a criminal offense ?

Temporary prison time should not cause the debtor to lose homestead protection under Florida law.

I don’t know of any cases addressing this issue. Most cases of homestead abandonment involve a debtor who purchases another home and either rents out or lists for sale his former homestead.

Any facts showing an intent never to return to the original homestead, or the occupancy of a new permanent residence indicates the intent to abandon the former homestead. In my opinion, the length of incarceration would be an important factor in the above hypothetical.

Certainly, life or long-term imprisonment would probably strip the debtor of homestead protection.

On the other hand, a debtor sentenced to prison for a year or less, even outside of Florida, could probably convince a court of his intent to return to his permanent Florida residence.

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Jon Alper is a nationally recognized expert in asset protection planning. He is considered one of the leading authorities in Florida asset protection and offshore trust formation. He graduated with honors from the University of Florida Law School, holds a masters degree from Harvard University, and has practiced law for over 50 years.

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