Mass. Gen. Laws » Part II Title I Chapter 188

Mass. Gen. Laws ch. 188, § 2

Homestead protection for elderly persons or persons with disabilities

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Section 2. (a) The estate of homestead of each owner who is an elderly or disabled person, regardless of marital status, shall be protected under this section against attachment, seizure, execution on judgment, levy and sale for payment of debts and legacies, except as provided in subsection (b) of section 3, to the extent of the declared homestead exemption; provided, however, that the declaration of homestead for such elderly or disabled person that complies with section 5 has been recorded; and provided, further, that each owner occupies or intends to occupy the home as his principal residence.

An owner of a home who qualifies under this section shall, upon recording of an elderly or disabled person's declaration of homestead protection, be eligible for protection of such ownership interest to the extent of the declared homestead exemption as set forth in clauses (3) and (4) of the definition of ''declared homestead exemption'' in section 1 regardless of whether such declaration is recorded individually or jointly with another.

(b) Except as provided in the following paragraph, each elderly or disabled person's estate of homestead shall terminate upon: (i) the sale or transfer of that person's ownership interest in the home, except where the elderly or disabled person is also the transferee of all or a portion of the transferred interest; (ii) the recorded release of that person's homestead estate; (iii) the subsequent declaration of an estate of homestead on other property; (iv) the abandonment of the home as the principal residence by the person; (v) the death of the person; or (vi) with respect to a home owned in trust, the execution of a deed or recorded release by the trustees.

In the event that an owner records a declaration under this section and then conveys to or is survived by a spouse who does not have the benefit of an estate of homestead created under this section or section 3 and the spouse occupies or intends to occupy the home as the principal residence, then the spouse shall be deemed, as of the time such spouse acquired title, to have the benefit of the declaration previously recorded to the same extent as if such declaration had been recorded under section 3, until the spouse becomes eligible for and records a declaration of homestead pursuant to this section.

(c) No declaration of homestead created under this section shall terminate the existing homestead rights of a non-titled spouse or any minor children.

(d) Nothing in this section shall prohibit an elderly or disabled person from declaring or continuing a homestead pursuant to section 3, but no person shall concurrently hold rights under both this section and section 3.

Notes of Decisions
Cited in 34 cases (1 in the last 5 years), 1987–2023 · leading case: In Re Webber
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In Re Webber (2002) mab · cites it 3× “See G.L. c. 188, §§ 2 and 7. 4 (The Trustee does not suggest that this estate of homestead has been terminated by a writing.”
In Re Gunnison (2008) mab · cites it 5× “Moreover, citing to In re Leigh, 3 she argues that under Mass. Gen. Laws ch. 188, § 2 , the filing of a subsequent declaration of homestead terminates the prior estate.”
Dwyer v. Cempellin (1996) mass · cites it 2× “See G. L. c. 188, § 2. 8 The document adequatély identified the property at issue and contained a written ^declaration of intent to hold the property as a homestead.”
In re Kology (2013) mab · cites it 10× “67 On Schedule C — Property Claimed as Exempt (“Schedule C”), the Debtors claimed an exemption in both their fee simple interest portion and their equitable claim to the remainder of the Property pursuant to Mass. Gen. Laws ch. 188, § 2 to the full amount of the listed value of…”
Stornawaye Financial Corp. v. Hill (2009) ca1 “” Mass. Gen. Laws ch. 188, § 2 . The rights emanating from a declaration of homestead are delineated in a separate subsection.”
In re Smither (2015) mab · cites it 3× “Mass. Gen. Laws ch. 188, § 2 . 4 Protection is not absolute, however.”
In Re Garran (2002) mab · cites it 2× “” G.L. c. 188, § 2. Thus, the last paragraph of Section 1A provides that an elderly or disabled person’s estate or claim of homestead may be terminated by four different methods: 1) the sale of the property or of the declarant’s interest; 2) a deed conveying the property; 3) a…”
In re Peirce (2012) mab · cites it 3× “13 While the Debtors specified Mass. Gen. Laws ch. 188, § 1A as the basis for their exemption on Schedule C, a substantial revision of the statute became effective on March 16, 2011, making the proper basis of their exemption Mass.”
Shamban v. Perry (2006) bap1 “Mass. Gen. Laws ch. 188, § 2 . Accordingly, under the explicit requirements of the Massachusetts law statute, the owner of property does not have the right to claim a homestead exemption until the declaration is recorded.”
In Re Miller (1990) mab “In order to acquire the benefit of the home *100 stead exemption, a homeowner need only satisfy the recording requirements set forth in G.L. c. 188, § 2. Neither Pierson nor the Trustee has alleged that Gerald Miller failed to do so.”
In re Andris (2012) mab · cites it 3× “17 Additionally, under Mass. Gen. Laws ch. 188, § 2 , “[t]he acquisition of a new estate or claim of homestead shall defeat and discharge any such previous estate.”
In Re Edwards (2002) mab “In accordance with Mass. Gen. Laws ch. 188, § 2 , this declaration “defeated and discharged” any prior declarations of homestead that the Debtor or his spouse might have had previously recorded.”
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— Mass. Gen. Laws ch. 188, § 2(a) — 1 case
Nickless v. Catton (2015) mad
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