Homestead Exemption: Do Creditors Have To File Homestead Designation With Government?

I was asked by a client this week- as I have been asked many times over the years- whether a new Florida resident has to file something with their county court in order to register their homestead as being exempt from civil creditors. Sections 222.01 and 222.02 of the Florida Statutes provide means by which a Florida resident  may claim Florida homestead exemption and notify judgment creditors of the property’s exempt status either before or after a judgment has been entered against the them.  The question was whether these statutory procedures are required to exempt homestead from creditors.

The answer is no. Florida courts have held that no declaration or any other act of a property owner is required to make the owner’s primary Florida residence an exempt asset if the facts otherwise indicate that the property is the owner’s domicile. I know of no case in either state court or bankruptcy court which has held that failure to use the procedures of Sections 222.01 or 222.02 disqualified a debtor’s homestead exemption. The statutory procedures are expressly option: they state that people “may” use these procedures. In a court case, if you show that a particular Florida property is your primary residence you will be afforded homestead protection. I am not stating that using the declarations and procedures in these statutes will harm your position; but, they are not required and are not as a practical matter given substantial weight in court.

About the Author

Jon Alper is an expert in asset protection planning for individuals and small businesses.

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