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The Homestead Allowance

© Susan M. Weschler

The homestead exemption, or allowance, traces it origins back to the 18th century, when the United States was expanding westward. The exemption began as an effort to protect wives and children if the husband was in danger of losing the house through gambling or dishonest means. It eventually became a method of protecting the family from losing their home from improper or unscrupulous debt claims after the husband died.

Today, it is an asset protection tool which if offered by most states to give some protection to the owner of a house if he should die with a large amount of debt. The “homestead allowance” has preserved the residence and the land for the benefit of the surviving spouse and minor children. This homestead is protected against claims of creditors in recognition of the custom that the decedent’s spouse and children should not lose their residence because of the decedent’s death. This protection against creditor claims is preserved when the homestead passes to the surviving spouse or the children of the decedent. The homestead is a significant means of preserving the family home for the family.

Most state statutes define the qualifying property for the homestead as the dwelling house and the adjacent property. The amount of property can vary from as little to half a city acre to more than 40 acres in a rural location. In some areas, the state homestead statue may define the allowance as a dollar amount. Some state statutes may also exempt other property, such as household furnishings, a vehicle, clothing, etc.

During the time that the estate is being administered, the surviving spouse is entitled to live in the homestead and this right continues until probate is completed. The property cannot be claimed by creditors and is exempt from debt payments and charges against the estate.

If the homestead is transferred to a trust, it does not lose its qualifying characteristics, and is still insulated from creditor claims. The definition of what constitutes a homestead varies from state to state, so it is important to understand the particular state law where the homestead is located. Most states require that if a homestead is to be relied on when one spouse dies, the couple must file a homestead allowance at some time after the property is purchased. If the homestead exemption is not filed, the property could be subject to creditor's claims upon the decedent’s death.

How does the process work?

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