AML Law Associates, LLC
40 Mechanic Street, Suite 302
Marlborough, MA 01752

Phone:  (508) 393-8400
Fax:  (888) 753-6040

AML Law Associates, LLC       Office  (508) 393-8400  Fax  (888) 753-6040


Declaration of Homestead

1.  What is a Declaration of Homestead?

The Massachusetts Homestead Act is a law under which a homeowner is provided limited protection of the value of the home, up to $500,00, against unsecured creditor claims.  The Homestead Act is Massachusetts General Laws (MGL) Chapter 188.

The Declaration of Homestead is designed to protect home ownership from execution and forced sale, so long as the owner or covered family member occupies or intends to occupy the property as his/her principal place of residence.


2. How is the Homestead established?

Section 4 of MGL Ch. 188 provides an automatic exemption available to everyone who owns a home and who occupies or intends to occupy the home as his/her principal residence. This exemption is for $125,000.00.


Filing a written Declaration of Homestead at the Registry of Deeds for the county where the home is located increases that amount to $500,000.00.


There are two types of Homestead Declaration. The standard form of homestead declaration is filed under Section 3 of the Homestead Act. The second form is for elderly or disabled people and is filed under Section 2.


Section 2: An elderly (age 62 or older) or disabled person may declare a Homestead under Section 2. The Section 2 homestead benefit does not extend to other family members in general, but each qualified owner should file.


Section 3: A Homestead Declaration under Section 3 must be filed by the owners of a home for the benefit of their family. For property held in trust the trustee must file.


Under both sections the property must be occupied or intended to be occupied as a principal residence. The extent of the homestead protection is $500,000 under Section 3 but can be higher under Section 2.


3. What does the Homestead do?

Upon filing a Declaration of Homestead, the homestead estate is exempt from attachment, execution or forced sale for payment of “non-exempted” debts.


4. What debts are not protected against by a Homestead Declaration?

The following do not qualify for Homestead protection: federal, state and local taxes and liens; mortgages contracted for purchase of the home and most other mortgages; debts and encumbrances existing prior to the filing of the Declaration of Homestead; probate court executions for spousal or child support; attachments on land not owned by the owner of the homestead; probate court executions for child support and spousal support; and court ordered executions in cases of fraud, mistake, duress, undue influence, and lack of capacity.


5. Do I have to file a new Homestead every time I re-mortgage or take out a second mortgage or home equity loan?  

No. The new language states clearly that homesteads are subordinate to mortgages and that no language in a mortgage can affect a homestead except to subordinate it.


6. Is property held in trust eligible for homestead protection?

Yes. Property held in trust can now reap the benefits of the Homestead Act. There is no mention of trust property being covered under the old law, but now it can be protected.


7. Will my Homestead protect my home from being taken if I go into a nursing home?

No. A lien imposed by the Office of Medicaid as a result of payment for Medicaid benefits, is a governmental lien and is exempt from Homestead protection.

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