Florida Residency Requirements

What Are the Florida Residency Requirements?

Florida residency requirements are the set of legal steps a person can take to firmly establish themselves as a Florida resident instead of as a resident of another state. Some people want to become Florida residents in part to escape state income and inheritance tax. Other people want to become Florida residents for asset protection purposes.

For state income tax purposes, establishing residency in Florida requires demonstrating an intent to make Florida your principal residence as well as, in most cases, actually residing in Florida most of the year.

However, for asset protection purposes, there are no set requirements to becoming a Florida resident. Asset protection is the process of legally structuring one’s assets and income to protect them from judgment creditors. To become a Florida resident for asset protection benefits, a Florida court would consider various factors evidencing your intent to live in Florida.

How to Become a Florida Resident

To become a Florida resident, one should consider the following Florida residency checklist:

• Record a Declaration of Domicile in the county in which you live.
• Maintain a physical mailing address, not a P.O. Box.
• Keep a record of informal statements regarding residency (emails/texts).
• Work for an employer that is located in Florida.
• Register to vote in Florida.
• Obtain a Florida driver’s license.
• If owning a home in Florida, pay applicable property taxes.
• Use a Florida address on all legal paperwork.
• Use the Florida address when filing income tax returns.
• Obtain Florida tags on all vehicles.
• Change passport address to Florida address.
• Physically move some valuable household items, such as artwork or jewelry, to your Florida home.
• File for the homestead tax exemption if you own a Florida home.
• Notify other professionals, such as your attorneys, accountants, banks, insurance carriers, that your primary residence is in Florida.
• Change your primary care physician to a local one in Florida.
• Leave any social clubs or memberships from your previous state of residence.
• If practical, sell any real estate of the previous state of residence.
• Notify government agencies of your new address, including Social Security, Medicare, and any others.
• For professionals moving to Florida, ensure that you are licensed to practice in Florida.
• Update your will and ancillary documents (Health Care Directive, Living Will, etc.) to Florida forms.
• For property still owned in the previous state, redo the policy as a “non-resident” or “secondary” home.
• If you have a safe deposit box, transfer it to a local Florida bank.
• Change your pets veternirarian to one in Florida (this was actually a determinting factor in one case).
• Change newspaper subscriptions to Florida.

How to Become a Florida Resident for Tax Purposes

Becoming a Florida resident means something different in terms of state income tax than it does in terms of Florida asset protection. While there may be certain requirements to physically stay in Florida relating to income taxes imposed by other states (Florida does not have a personal income tax), there is generally no such time requirement to become a Florida resident for asset protection.

In terms of Florida residency requirements for tax purposes, you will at minimum need to be living in Florida as a resident for six months. Often snowbirds, or people that come to Florida to avoid the cold winters up north, seek to establish residency in Florida to avoid the high-income tax rates imposed by those northern states.

Ultimately, you should contact a tax professional in the northern state to see the taxing state’s requirements and guidelines for determining whether or not you have become a Florida resident.

For Florida asset protection purposes, what is needed to become a Florida resident is a true intent to make Florida your permanent residence. There is not a strict six-month time limit.

How to Become a Florida Resident for Asset Protection

Naturally, the longer you’ve lived in Florida, the stronger your claim to Florida residency for asset protection. To become a Florida resident and establish your residency here, you must sever ties to the state you moved from. For example, you should sell your current residence outside Florida, turn in your out-of-state driver’s license, and close your bank accounts in the state where you previously resided. It is difficult to claim Florida residency if your license and vehicle registration are elsewhere.

Generally, only Florida residents may take advantage of Florida’s liberal asset protection laws. For instance, to protect money in a Florida homestead property or in other assets protected by Florida statutes, one must first establish oneself as a Florida resident.

The term “Florida resident” has different meanings under different parts of Florida law. For asset protection purposes, Florida residency means more than just owning Florida property or having a Florida address. Whether or not you qualify as a permanent Florida resident depends on whether your circumstances and your actions demonstrate your intent to establish a primary place of residence in Florida. When “going home” means you are returning to your residence in Florida, and when your mail is sent to your Florida address, you are probably a Florida resident.

Florida Residency and the Declaration of Domicile

A Florida declaration of domicile is a sworn affidavit filed in the Circuit Court of a person’s residence that documents the intent to make Florida their permanent home. Florida Statute 222.17 permits people to manifest and document their intent by filing such a declaration of domicile. Under the statute, the declaration may be filed by a person who maintains a “place of abode” in a Florida county where they intend to maintain as their permanent home.

People who maintain a second residence in another state may file the declaration of domicile to manifest their Florida residence as their primary home.

Declaration of Domicile Not Required

The declaration of domicile is a voluntary filing. No statute requires an existing or new Florida resident to file a Declaration of Domicile. Failure to file the declaration does not disqualify one from being a Florida resident.

Similarly, the filing of the declaration, by itself, is insufficient to establish domicile. The Florida Supreme Court explained that Florida residency requires not just an intention expressed in a Declaration, but also the fact of residency. Good faith intention to be a Florida resident must be accompanied by the overt act of residence.

Purpose of Declaration of Domicile

One of the main purposes of filing a declaration of domicile in Florida is to help establish Florida residency.

Florida residency is important to qualify debtors to assert homestead protection and the asset exemptions provided by Florida statutes. Courts look primarily to facts and debtor behavior to determine domicile. If the debtor conducts their life in a manner that demonstrates their intent to make Florida their permanent home, then the courts will consider the debtor a Florida resident.

Intention to move to Florida does not create Florida residency unless the debtor implements his intent through action.  Filing a Declaration of Domicile is evidence of the debtor’s intent, but it is neither necessary nor determinative. A debtor has a Florida domicile as soon as he resides in Florida and demonstrates his intention to make Florida his home. There is no waiting period required for domicile, and even just one day of permanent residence may be sufficient.

If a debtor establishes a Florida domicile and then leaves the state, he remains a Florida citizen until he establishes a domicile elsewhere.

Florida Residency Tax Issues

Sometimes people wish to establish Florida residency to avoid income taxes from another state. Because Florida does not impose an income tax, Florida does not have legal requirements as to whether or not you are a Florida resident for income tax purposes.

Other states that do impose an income tax may have laws requiring a taxpayer to demonstrate an intent to live in a different state (such as Florida) to avoid applying the state’s income tax. In such a scenario, a declaration of domicile may be helpful to establish under the other state’s laws that the individual is a Florida resident and, therefore, should not be subject to the original state’s income taxes.

183 Day Rule for State Residency in Florida

Many income tax states use a “183 Day Rule,” or a 6-month rule, to establish residency in Florida.

Under the rule, the taxing states require that a person looking to declare residency in Florida must reside in Florida for at least 183 days (in other words, one day more than six months).

Note that any time spent in the state can count as a day. For example, consider the situation of a former New York resident who has moved to Florida. The person still works occasionally in New York despite being a Florida resident. Occasionally the person travels to New York for meetings or leisure, but returns the same day to the person’s Florida residence. The New York travel days still count as “New York days” in terms of the 183-day rule even though the person ultimately spends the night in Florida.

How Courts Decide Florida Residency

When determining whether someone has established residency in Florida, courts consider all relevant facts and circumstances of a person’s ties to Florida. To decide if a judgment debtor is domiciled in Florida, a court often uses definitions and indications of Florida residence taken from Florida Statutes and Florida’s administrative code. Florida Statute § 222.17 states that a person can show intent to maintain a Florida residence as a permanent home by filing a sworn Declaration of Domicile with the circuit court clerk. The statute does not exclude concurrent ownership of a second residence in another state, provided that the primary residence is claimed only in Florida.

Florida Statute § 196.012 defines a permanent residence as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.”

Asset Protection Benefits for Florida Residency

Florida residents enjoy some of the best asset protection laws among any state in the country.

Three of Florida’s most important types of protected assets include the homestead exemption, tenants by entireties, and head of household exemption.

The most well-known protection is the Florida homestead exemption, which protects a person’s homestead from forced sale by a judgment creditor. The homestead exemption is unlimited without any dollar cap. However, there is an acreage limit: 1/2 acre if the property is inside a city and 160 acres if in an unincorporated part of a county.

Florida also provides an expansive version of tenants by entireties, which can protect all types of property owned by a married couple from creditors of a single spouse. Property that can be owned by the entireties includes, for example, bank accounts, real estate, business interests, furniture, and certain equipment.

Florida law presumes that all personal property acquired by a married couple in Florida is tenants by entireties—in most cases, it is up to the creditor to rebut the presumption of entireties ownership.

Finally, Florida statutes exempt the earnings of the head of household, or head of family. Earnings can include wages, salary, commission, or bonus. A head of family is one who provides more than 50% of the financial support for someone they have a moral or legal duty to support (usually an immediate family member).

There is no waiting period to establish Florida residency for asset protection purposes. As soon as you form the intent to make Florida your primary home, you are a Florida resident, and you are entitled to Florida’s asset protection benefits.

The rules are different for bankruptcy, however. Bankruptcy law imposes a two-year waiting period before a debtor may claim Florida’s exemptions in bankruptcy court.

Moving to Florida a Fraudulent Transfer?

A fraudulent transfer is when a judgment debtor transfers an asset to hinder or delay collection from a current or future creditor.

In general, moving to Florida to take advantage of Florida statutory exemptions and protections from creditors is not a fraudulent transfer. See In re Hill, 163 B.R. 591 (Bankr. N.D. Fla. 1994). However, there is at least one case where the court disallowed Florida exemptions when the person moved to Florida solely to take advantage of exemptions to frustrate creditors in another state.

When Is it Too Late to Move to Florida?

Many people from all over the country who have current or potential legal problems are interested in moving to Florida to take advantage of Florida’s homestead protection and other asset protection laws. It is never too late to move to Florida to obtain protection from civil liability. Debtors may legally become Florida residents and protect money invested in a new Florida homestead property even after a money judgment is entered.

There are no civil or criminal penalties for moving to Florida after a creditor files a lawsuit. However, a possible complication exists if another state’s court has issued an injunction against the transfer of assets.

Important Court Decision: Florida Domicile vs. Residency

Maldonaldo v. Allstate Insurance Company, 789 So. 2d 464 (2nd DCA Fla. 2001)

This decision explains the concepts of Florida domicile, Florida residency, and Florida citizenship.

See also:

• Keveloh v. Carter 699 So. 2d 285 (5^th DCA Fla. 1997)
• Minick v. Minick, 111 Fla 469 (Fla. 1933)

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