Florida Residency

Being a Florida resident allows a person to escape state income tax and inheritance tax and take advantage of Florida’s asset protection laws. For income tax purposes, a Florida resident means someone who is domiciled in Florida and maintains a physical presence in Florida at least 183 days of the year. For asset protection, a Florida resident must demonstrate an intent to maintain their primary residence in Florida. Florida courts consider various factors evidencing an intent to live in Florida.

How to Become a Florida Resident

To become a Florida resident, you must establish your primary domicile in the state and undertake several legal actions to solidify your residency status. Here are the most important steps:

1. Secure a Residence: Purchase or rent a home in Florida to show you have a physical presence in the state.
2. Obtain a Florida Driver’s License: Visit a local Department of Highway Safety and Motor Vehicles (DHSMV) office and exchange your out-of-state license for a Florida one. Bring appropriate identification and proof of residency.
3. Register Your Vehicle: If you own a vehicle, you should register it in Florida.
4. File a Declaration of Domicile: This document states your intent to make Florida your primary residence. While not mandatory for all new residents, it offers concrete evidence of your intention to reside permanently in Florida. Record it with the local county clerk’s office.
5. Register to Vote: Join the Florida voter rolls by registering with the county’s supervisor of elections.
6. Update Your Mailing Address: Make sure you change your address on important documents, subscriptions, bills, and any other significant mail to reflect your Florida address.
7. Establish Banking and Financial Connections: Consider opening a bank account in a Florida-based bank and possibly move your financial assets or investments to Florida institutions.
8. File Florida Homestead Exemption: If you purchase property and it’s your primary residence, you may qualify for the Florida Homestead Exemption, which can reduce your property’s taxable value.
9. Stay in Florida: Reside in the state for most of the year. This solidifies your status and can have tax implications, given Florida’s lack of a state income tax. Note that this is not a hard requirement.
10. Move Household Items: Physically move valuable household items, such as artwork or jewelry, to your Florida home.

The critical aspect of establishing Florida residency is demonstrating genuine intent to make Florida your “home base” or primary place of residence. A person moving to Florida does not need to satisfy every element on the list to fully establish domicile. Some items are more important than others.

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 must live 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.”

Definition

A “Florida resident” generally refers to an individual who has established Florida as their primary and permanent domicile. This means that the person regards Florida as their primary place of residence and intends to maintain it as such, even if they temporarily leave the state for vacations, work, or other reasons. Establishing residency typically entails actions such as obtaining a Florida driver’s license or state ID, registering a vehicle in the state, becoming a registered voter in Florida, and possibly filing a Declaration of Domicile, which is a legal affirmation of one’s permanent residence in a specific county within Florida.

However, the precise criteria for residency can vary based on the context in which the term is being used. For instance, the requirements for being recognized as a Florida resident for tax purposes differ from those for in-state tuition eligibility, voting, and asset protection.

Florida Declaration of Domicile

A Florida declaration of domicile is a sworn affidavit 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 a declaration of domicile to manifest their Florida residence as their primary home.

Purpose

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?

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.

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)

Frequently Asked Questions