How can I protect my home with homestead exemptions?

A homestead exemption allows you to keep your home or a portion of the equity in your home. Almost all states offer some type of exemption of a person’s home from the claims of creditors. Unfortunately, in many states, it is a very small amount.

Some states, such as Florida, Oklahoma, Texas, Arkansas, Iowa, Kansas and South Dakota, offer either unlimited or nearly unlimited homestead protection. In these states, the opportunity exists for a debtor to protect literally millions of dollars in his or her personal residence. Yet, even homestead protection has significant defects.

  • Homestead exemption does not protect against federal tax liabilities, or state tax liabilities of the state where the property is located.
  • Homestead only protects a primary residence, not vacation homes.
  • Homestead traps the value of the residence within the debtor's estate. In other words, the money becomes fair game if the property is sold or passed to beneficiaries.

The laws vary from state to state regarding what type and amount of homestead is protected. In some states, only traditional single-family homes are protected, but in many others, condos, co-op apartments and mobile homes are protected, as well. Some states limit the physical size of the homestead. In a number of states the dollar limit is based on the person’s interest in the property; in others, it is based on the entire property.

In many cases homestead rights have been very liberally construed and people have been allowed to keep oil and gas rights, crops growing on the property and expensive additions to property.

Because the laws vary so much from one state to another, owners of valuable residences would be wise to seek advanced solutions to attempt to protect the value of their residence and to transfer that value outside of their estate. Speak to an attorney or a financial advisor who is well versed in asset protection planning for advice.