Also known as: homesteads · homesteading · homestead exemption · homestead right
Written by attorneys — see sources below.
2 senses
A parcel of land together with the dwelling and outbuildings that a homeowner occupies as a residence. State law often exempts the homestead from forced sale by creditors up to fixed value or area limits.
A parcel of land together with the dwelling and outbuildings that a homeowner occupies as a residence. State law often exempts the homestead from forced sale by creditors up to fixed value or area limits.
Hyun Han owned a residence that the city sought to condemn for a public project. The city offered compensation equal to fair market value. The court upheld the taking, holding that the homestead exemption does not prevent eminent domain when just compensation is paid.
A statutory pecuniary allowance payable from a decedent's estate to the surviving spouse or, if none, to minor or dependent children. The allowance has priority over most claims and is in addition to any share passing by will or intestacy.
Harold Hunt signed a written agreement before marrying Hilda Hernandez that waived all rights to homestead allowance from her estate. After Hilda's death, Harold sought the allowance from the probate court. The court denied the claim because the signed writing satisfied the statutory requirement for an enforceable waiver.
A statutory pecuniary allowance payable from a decedent's estate to the surviving spouse or, if none, to minor or dependent children. The allowance has priority over most claims and is in addition to any share passing by will or intestacy.
Each sense below has its own examples, sources, and questions.
The City of Chicago, acting under an 1872 Illinois statute that became part of its charter in 1875, passed an ordinance on October 9, 1880, to open and widen Rockwell Street from West 18th Street to West 19th Street by condemning parcels of land owned by individuals and parts of the right of way of the Chicago, Burlington and Quincy Railroad Company within the city limits. On November 12, 1890, the city filed a petition in the Circuit Court of Cook County seeking condemnation of the property and asking that just compensation be ascertained by a jury, with the railroad company admitted as a defendant along with other interested parties. The jury awarded one dollar as just compensation to the railroad company for the parts of its right of way to be used for the street, while awarding compensation to individual owners for their parcels. The railroad moved for a new trial, which was overruled, and final judgment was entered in execution of the award. The judgment was affirmed by the Supreme Court of Illinois in 149 Illinois 457. After affirmance the railroad company sued out a writ of error to the United States Supreme Court. The railroad had raised claims under the Fourteenth Amendment in its motion for new trial and in its assignment of errors filed in the state supreme court. The Illinois statute provided no provision for an answer by defendants in condemnation proceedings, but the railroad asserted its federal claims in the written motion to set aside the verdict and grant a new trial.
View caseHiroshi Hasegawa and his wife held their residence as tenants by the entirety. A creditor obtained a judgment against Hiroshi alone for a separate debt. The court refused to allow execution against the homestead because the entireties estate could not be reached for one spouse's separate obligations.
On November 30, 1968, Masako Sawada and Helen Sawada were injured when struck by a motor vehicle operated by Kokichi Endo. On that date Kokichi Endo owned a parcel of real property in Wahiawa, Oahu, Hawaii, as a tenant by the entirety with his wife Ume Endo. On June 17, 1969, Helen Sawada filed her complaint for damages against Kokichi Endo. Masako Sawada filed her suit against him on August 13, 1969. The complaint and summons in each case was served on Kokichi Endo on October 29, 1969. By deed dated July 26, 1969, Kokichi Endo and Ume Endo conveyed the Wahiawa property to their sons Samuel H. Endo and Toru Endo. The deed was recorded in the Bureau of Conveyances on December 17, 1969. No consideration was paid by the grantees. Both sons were aware at the time of the conveyance that their father had been involved in an accident and that he carried no liability insurance. Kokichi Endo and Ume Endo continued to reside on the premises. On January 19, 1971, after a consolidated trial on the merits, judgment was entered in favor of Helen Sawada and against Kokichi Endo in the sum of $8,846.46. At the same time Masako Sawada was awarded judgment on her complaint in the amount of $16,199.28. Ume Endo died on January 29, 1971. After being frustrated in their attempts to obtain satisfaction of judgment from the personal property of Kokichi Endo, the Sawadas brought suit to set aside the conveyance. The trial court refused to set aside the conveyance, and the Sawadas appealed.
View caseHudson Partners contracted to buy land from Halcyon Motors without obtaining the signature of the seller's spouse on the deed. The spouse later objected that the parcel was homestead property. The court held the conveyance void for lack of spousal consent required by state homestead law.
Roy Smith and his twin brother Ray Smith became involved in a dispute over land ownership that originated with acquisitions in the 1940s and 1950s. Ray Smith purchased an 80-acre rectangular tract in 1943. In 1950, Ray, Roy, and their mother obtained joint title to a 42-acre tract positioned cattycornered southwest of Ray's 80 acres. In 1960, Ray and their mother transferred their interests in the 42-acre tract to Roy. This allowed Roy to mortgage the property and acquire an additional 80-acre tract north of the 42 acres and west of Ray's original holding. The brothers differed on the purpose behind the 1960 conveyance of the 42-acre tract. Ray maintained that it served only to help Roy finance the northern 80-acre purchase, with the understanding that Roy would later transfer half of the 42 acres back to Ray. Roy asserted that the transfer formed part of their parents' plan for the twins to achieve equal land ownership through mutual conveyances of half their respective parcels. On December 30, 1963, Roy conveyed about 20 acres from the 42-acre tract to Ray. Roy alleged that this transfer occurred under an oral agreement whereby Ray would convey the northern half of his 80-acre tract to Roy in exchange. Ray denied entering into any such agreement. Seventeen years later, in May 1981, Roy initiated a lawsuit against Ray seeking specific performance of the alleged oral contract. The case proceeded to a bench trial without a jury, resulting in a judgment for Roy. Ray then appealed to the Supreme Court of Alabama, raising three grounds of error related to the enforcement of the oral contract.
View case1 common questions
Yes. Many states permit the exemption in bankruptcy even when no formal declaration of homestead has been recorded.
Hope Howard received a life estate in the family home under the state constitution after her husband died. She petitioned for the statutory homestead allowance from the estate. The court reduced the allowance by the value of the constitutional life estate because the home would otherwise have been part of the probate estate.
Harper Hill was convicted of intentionally killing her husband. She filed a claim for the homestead allowance from his estate. The court denied the claim and directed distribution as if Harper had disclaimed the allowance.
4 common questions
Yes. The homestead allowance is payable in addition to any elective-share amount and is not charged against it.
Yes. When a surviving spouse receives a constitutional homestead interest in the family home, that value is charged against the statutory homestead allowance to the extent the home would otherwise have entered the probate estate.
Yes. A written agreement signed by the surviving spouse before or after marriage may waive the homestead allowance and is enforceable without consideration.
Yes. The killer forfeits the homestead allowance along with all other benefits under the probate article, and the estate is distributed as if the killer had disclaimed the share.
…which has been added to this group, has provided by statute that the interest of a debtor spouse in any type of estate, except a homestead as defined and held in tenancy by the entirety, shall be subject to his or her separate debts. Pilip v. United States , 186 F. Supp. 397 (D. Alaska, 1960). In the Group III jurisdictions…