Florida residency refers to the legal status of individuals who maintain their primary home in the state of Florida. To establish residency, a person must demonstrate intent to make Florida their permanent home.
Florida residency can affect various legal and financial matters, including asset protection, taxation, in-state tuition eligibility, and access to certain state benefits. The specific requirements may vary depending on the context, such as for tax purposes versus university enrollment.
How to Become a Florida Resident
Here are the key steps to establish residency in Florida:
- Maintain a physical presence in Florida for at least 183 days per year.
- Obtain a Florida driver’s license or ID card.
- Register to vote in Florida.
- File a Declaration of Domicile with the county clerk.
- Pay Florida taxes and claim the homestead exemption on your property.
- Use a Florida address on all legal paperwork, including tax returns.
- File for the homestead tax exemption if you own a Florida home.
- Change your passport address to Florida.
- Physically move valuable household items, such as artwork or jewelry, to your Florida home.
- Maintain a physical mailing address, not a P.O. Box.
Why Do People Want to Become Florida Residents?
Some people want to become Florida residents to escape state income tax and inheritance tax. Other people want to become Florida residents to take advantage of its asset protection laws.
For state income tax purposes, establishing residency in Florida requires physical presence in Florida most of the year. For asset protection, there is no minimum occupancy requirement to be a Florida resident. Instead, Florida residency for asset protection requires one to demonstrate an intent to maintain their primary residence in Florida. Florida courts consider various factors evidencing an intent to live in Florida.
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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. Income tax residency is not a Florida issue because Florida has no income tax. This is a taxation issue for the state of one’s other residence, typically “up north.”
The taxing state has the monetary incentive to retain one’s residency and deny Florida residence. The taxing state authority sets its rules for the qualification of Florida residency to avoid state taxation.
To become a Florida resident for taxes, you will need to be living in Florida for more than six months. A tax professional in the taxing state can explain the taxing state’s requirements and guidelines for determining whether or not you have become a Florida resident.
How to Become a Florida Resident for Asset Protection
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.
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 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.”
Tip: In our experience, it is easier to become a Florida resident for asset protection than for income tax, tuition, or other purposes. We advise our clients that some Florida asset protection techniques do not even require becoming a Florida resident.
Florida Declaration of Domicile
A declaration of domicile is a sworn affidavit that proves residency in Florida. It is used to show an intent to make Florida your permanent home, become eligible for the homestead exemption, or qualify for in-state tuition for Florida schools.
Florida Statute 222.17 permits people to document their intent to become a Florida resident 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 a declaration of domicile to manifest their Florida residence as their primary home.
Purpose
A declaration of domicile is not required to become a Florida resident. 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.
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.
The intention to move to Florida does not create Florida residency unless the debtor implements their intent through action. 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
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) for most of the calendar year. 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.
Asset Protection Advantages for Florida Residency
Florida residents enjoy some of the best asset protection laws among any state in the country.
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).
Waiting Period for Florida Residency
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?
Moving to Florida cannot be a fraudulent transfer. There is no legal concept of a “fraudulent move.”
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 with 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.
Frequently Asked Questions
What is a Florida resident?
A Florida resident is someone who lives in Florida with the intention of making it their permanent home. Florida residency status confers certain legal benefits, including homestead protections, tax advantages, and access to state-specific programs and services.
How do you change residency to Florida?
To change residency to Florida, you typically need to establish a physical presence in the state and show intent to make it your permanent home. This usually involves actions like obtaining a Florida driver’s license, registering to vote in Florida, filing for homestead exemption if you own property, and spending at least 183 days a year in the state.
How long does it take to establish residency in Florida for tax purposes?
Most states implement what is known as the 183-day rule, which requires that a person reside in Florida for at least 183 days (more than six months) to be considered a resident.
During the 183 day window, it is also wise to follow a Florida residency checklist to ensure that you have demonstrated your intent to call Florida your permanent home.
Can you be a resident of two states?
A person can own multiple residences, but can only have one domicile. A domicile is your true home, where you intend as your family’s base.
However, in some rare situations, a person could be a resident of two states for state income tax purposes. This situation occurs when a person is domiciled in one state, but lives in another state for more than 183 days. This could cause the other state to impose income taxes.
How do you prove residency in Florida?
Several acts contribute towards proof of residency in Florida. Some of the most important items include recording a declaration of domicile, changing your driver’s license, and registering to vote. However, it is best to look at a full checklist.
What is the 183 day rule for residency?
The 183-day rule refers to the amount of time someone must live and physically be present in Florida before being considered a Florida resident by a person’s former state of residence.
