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 ? Someone inquired whether they could maintain homestead protection if after moving to Florida they were sentenced to prison in another state for a term of about six months. The question is whether forced incarceration out of the homestead constitutes the abandonment of the homestead property.

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.

Jon Alper

About the Author

I’m a nationally recognized attorney specializing in asset protection planning. I graduated with honors from the University of Florida Law School and have practiced law for almost 50 years.

I have been recognized as a legal expert by media outlets such as the New York Times and the Wall Street Journal. I have helped thousands of clients protect their assets from creditors.

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