A Foreign Debtor who Lacks Permanent Residence in the U.S. may Qualify for Florida’s Homestead Exemption
The home has special significance under Florida law, as public policy favors property ownership, citizen independence, and preserving a home where a family can be sheltered and “live beyond the reach of economic misfortune.” Generally, once an individual files for bankruptcy, all property of the debtor becomes property of the estate. However, Section 522 of title 11 of the United States Code (“Bankruptcy Code”) allows a debtor to exempt certain property from the estate. The Bankruptcy Code permits states to opt out of the federal exemption scheme provided. Florida is one of the states that has opted out, therefore the exemptions are dictated by Florida state law. The homestead exemption in Florida is derived from its constitution, which provides that a debtor’s homestead is protected from forced sale.
Florida courts have developed a two-part test to determine whether a homeowner may receive the benefit of the homestead exemption. Homeowners seeking to qualify must meet both an objective and subjective test. The objective test provides that the homeowner must actually use and occupy the home. The subjective test provides that the homeowner must express an actual intent to live permanently in the home.
An issue that frequently arises when the homestead exemption is litigated is whether a foreign debtor can meet the subjective prong of the homestead exemption test. Critical to the analysis of the subjective prong is the notion of intent. A foreign debtor can prove intent to permanently reside in a home when he has family members residing there who are permanent United States residents, even if he is personally not residing there. Thus, it is necessary to define the term “family.” Although it is clear that minor children are considered family, it is less clear if having an adult child in the home would allow the property to qualify for the exemption.
This memorandum explores under what circumstances a foreign debtor can qualify for the Florida homestead exemption. Part I examines Florida’s homestead law generally and the legal standards courts use to determine eligibility. Part II focuses on the disagreement among the courts regarding whether a foreign debtor can qualify for the exemption and analyzes whether adult children are considered “family” for purposes of qualifying for the homestead exemption.