Can Married Couple Claim And Protect Two Separate Homestead Properties?
Some of my out of state clients want claim Florida residency to protect assets, but they really do not want to move to Florida. Some married debtors ask whether they can invest in a Florida property and claim the property as their homestead while their non-debtor spouse remain in their family home in another state. Can a debtor and his non-debtor spouse have separate homesteads?
The general answer is “yes”; married couples can have separate homesteads, but this is the exception, and it is not as easy as most people imagine. The debtor and his spouse have to be legitimately separated and living apart in different primary residences. The married couple does not have to be legally separated under state family law rules, but their physical separation has to be bona fide and not arranged to defraud creditors. Florida courts have stated that a husband and wife of an “intact marriage” cannot maintain separate legal residences for homestead purposes.
I have met a few asset protection or bankruptcy clients who actually live separately from their spouse and have done so for many years. In these instances, each spouse was working for an employer in different locations
In most cases, people who tell me they have or want separate homestead properties are still part of an intact family and are not entitled to two homestead exemptions. The answer depends upon the facts and circumstances of each case. Simply claiming a homestead tax exemption for a particular Florida property and using the same address on a drives license and voter card is insufficient when other facts show that the same property is not the debtor’s true home.
