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

Mass. Gen. Laws ch. 188, § 5 (2026)

Declaration of homestead; contents; recording

✓ current as of July 2026
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Section 5. (a) A declaration of homestead shall be in writing, signed and acknowledged under penalty of perjury by each owner to be benefited by the homestead, except as provided in clause (4), shall be recorded and shall comply with the following:

(1) each owner to be benefited by the homestead, and the owner's non-titled spouse, if any, shall be identified;

(2) the declaration shall state that each person named therein occupies or intends to occupy the home as their principal residence;

(3) if the home is co-owned by a married couple, whether in their names only or as co-tenants with others, and the home is the principal residence or is intended to be the principal residence of both spouses, a declaration under section 3 shall be executed by both spouses; and

(4) if the home is owned in trust, only the trustee shall execute the declaration.

(b) A declaration of homestead under section 2 shall, in addition to the requirements of subsection (a), include the following:

(1) a statement that the owner to be benefited is an elderly person or a disabled person; and

(2) with respect to a declaration of homestead benefiting a disabled person: (i) an original or certified copy of a disability award letter issued to the person by the United States Social Security Administration; or (ii) a letter signed by a physician registered with the board of registration in medicine certifying that the person meets the disability requirements stated in 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C) as in effect at the time of recording; provided, however, that the award letter or physician's letter shall be recorded with the declaration.

(c) A declaration of homestead shall not be created within a deed or other instrument vesting title in the owner.

(d) The statement of principal residence required in clause (2) of subsection (a) shall be binding upon an identified owner, including an owner who is a beneficiary of a trust, but may be overcome by an interested third party upon presentation of clear and convincing evidence to the contrary. In the event that spouses occupy or intend to occupy separate homes and valid declarations are recorded with respect to each, then both estates of homestead together shall not exceed the declared homestead exemption.

The estate of homestead of an individual who records a declaration of homestead under section 3 and who subsequently marries shall automatically be deemed to benefit that individual's spouse. Any subsequent recording of a declaration of homestead benefiting: (i) a family member identified on a prior declaration on the same home; or (ii) the spouse of that person, without an intervening release, shall relate back to the filing date of the earliest recorded declaration, but the provisions of this chapter pursuant to which the later recorded declaration was made shall control the rights of a person identified in the later declaration.

(e) The declaration of homestead shall recite whether the owner, the owner's spouse or other family member to be benefitted is a servicemember who may be subject to protection under the Servicemembers Civil Relief Act, 50 U.S.C. app. § 533, should that owner, spouse or family member be called to active duty. A failure to include a recital as to servicemember status shall not affect the validity or enforceability of the declaration and the rights created thereunder.

Notes of Decisions
Cited in 15 cases (4 in the last 5 years), 1996–2025 · leading case: In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017).
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In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). · cites it 12× “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
In re Newcomb, 513 B.R. 7 (Bankr. D. Mass. 2014). · cites it 6× “” 43 Mass. Gen. Laws ch. 188, § 5 (a) provides in relevant part: *15 (a) A declaration of homestead shall be in writing, signed and acknowledged under penalty of perjury by each owner to be benefited by the homestead, except as provided in clause (4), shall be recorded and shall…”
Patriot Portfolio, LLC v. Weinstein (In Re Weinstein), 164 F.3d 677 (1st Cir. 1999). “Thus, we hold that Bankruptcy Code § 522(f) preempts Mass. Gen. Laws ch. 188, § 5 . We are unimpressed by Patriot’s attempt to distinguish this case from Owen.”
In Re Peirce, 467 B.R. 260 (Bankr. D. Mass. 2012). · cites it 9× “18 To the extent the Debtors seek to exempt their life estate interest in the Property, the Trustee argues the Homestead did not comply with the formalities required by Mass. Gen. Laws ch. 188, § 5 , and accordingly, was invalidly executed.”
In re Dickey, 517 B.R. 5 (Bankr. D. Mass. 2014). · cites it 2× “47 Based on the view that the Lanac Trust owns the Property rather than the Debtor, Ridgewood asserts that the Exemption is invalid because Mass. Gen. Laws ch. 188, § 5 requires a trustee to execute the declaration in favor of the beneficiaries of the trust that holds real…”
Boyle v. Weiss, 962 N.E.2d 169 (Mass. 2012). “It is also the case that under G. L. c. 188, § 5 (a) (4), as appearing in St.”
In Re Weinstein, 217 B.R. 5 (D. Mass. 1998). “§ 522 (f) of the Bankruptcy Code and Section 5 of the Homestead Act (Mass.Gen.L. ch. 188, § 5), is nearly identical to the statutory conflict between 11 U.”
In Re Heretakis, 293 B.R. 82 (Bankr. D. Mass. 2003). “Sections 6 of the statute provides the following: Property which is subject to a mortgage executed before an estate of homestead was acquired therein, or executed afterward and containing a release thereof, shall be subject to an estate of homestead, except as against the…”
Aetna Cas. & Sur. Co. v. Rodco Autobody, 965 F. Supp. 104 (D. Mass. 1996). “They have owned the home for the past 13 to 14 years and have accumulated equity in the property slightly below $100,000.”
In Re Norkus, 256 B.R. 298 (Bankr. S.D. Iowa 2000). “The Weinstein court first looked at section 5 of the homestead law that provided: “No estate of homestead shall affect a mortgage, lien or other encumbrance previously existing.”
In re James, 560 B.R. 15 (Bankr. D. Mass. 2016). · cites it 2× “Moreover, the Trustee states that Mass. Gen. Laws ch. 188, § 5 , the section governing the exemption of a declared homestead, provides relevant guidance in interpreting Mass.”
Danny Luu (Bankr. D. Mass. 2022). · cites it 3× “] Mass. Gen. Laws ch. 188, § 5 . A claimed exemption is presumed to be valid unless a party in interest objects, see 11 U.”
Show all 15 citing cases →
— Mass. Gen. Laws ch. 188, § 5(a)(1) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
— Mass. Gen. Laws ch. 188, § 5(a)(2) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
— Mass. Gen. Laws ch. 188, § 5(a)(3) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
— Mass. Gen. Laws ch. 188, § 5(a)(4) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
— Mass. Gen. Laws ch. 188, § 5(b)(1) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
— Mass. Gen. Laws ch. 188, § 5(b)(2) — 1 case
In re Zakarian, 570 B.R. 680 (Bankr. D. Mass. 2017). “Hillman of this court concluded: Without question this statement [as to beneficial ownership] if not inaccurate is at very least imprecise, but I fail to see how it could be fatal to the Declaration considering Mass. Gen. Laws ch. 188, § 5 (a) does not require this information…”
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