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15.2.4.2 Abandonment

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15.2.4.2 Abandonment

A homestead can be lost by abandonment, either by living elsewhere90 or by using it for non-homestead purposes.91 Because of the favored position of homesteads, the party asserting abandonment bears a heavy burden of proof.92

Merely listing a home for sale or forming an intent to sell is not abandonment of the homestead if the debtor continues in occupancy.93 On the other hand, moving out and putting a homestead on the market is probative on the issue of abandonment.94 A debtor did not abandon the homestead where he and his family lived by listing a different property as his homestead in connection with a home equity loan.95

Problems arise when a debtor who must relocate or seek a less expensive home must move out before a sale is completed. Some courts have held that it is the acquisition of a new homestead, not moving out of the old, that terminates the homestead.96 Many of these cases turn on the jurisdiction’s rules about whether the proceeds of the sale of the homestead are exempt.97

Courts usually find no abandonment when there are good reasons, such as health problems98 or flood or hurricane damage to the home,99 that force the debtor to live elsewhere temporarily. A debtor who travels extensively for business or other reasons can maintain a homestead despite only sporadic occupancy.100 Most courts hold that a spouse who flees domestic conflict or is excluded by a restraining order does not abandon the homestead.101 Except in the case of a life sentence,102 a prisoner normally does not intend the prison to be a permanent residence and so may be able to claim a homestead exemption in their former home.103

Footnotes

  • 90 ABANDONMENT SHOWN: In re Paul, 739 F.3d 1132 (8th Cir. 2014) (moving out without intention to return forfeits South Dakota homestead right; shown here when debtor had not lived on property for years and expressed no intention to return); In re Kelley, 300 B.R. 11 (B.A.P. 9th Cir. 2003) (Cal. law) (automatic homestead requires intent to reside permanently; not shown when owner moved into apartment, visited home “occasionally” to repair damage, and rented it to cousin; declared homestead continued because no new homestead established, but would not protect against forced sale); Feucht v. Pierce, 2006 WL 3354507 (D.S.D. Nov. 15, 2006) (no homestead exemption for wife who had moved out of home jointly owned with estranged husband; intent to return that is “merely possible” or contingent on other event—here, husband’s departure or couple’s reconciliation—is insufficient); In re Schuster, 2006 WL 2711800 (D. Mont. Sept. 21, 2006) (residence required, with some exceptions for temporary absence with intent to return; not shown here when debtor had not resided in condominium for ten years but intended to return when his dog died); Huggins v. Pierce, 2000 WL 33348257 (W.D. Tex. June 21, 2000) (deceased parents’ home not debtor’s homestead when he was employed abroad, intended to continue that employment, had resided in home only for brief visits, had placed home on market, had agreed to split proceeds with siblings, and had changed his mailing address); In re Lugo, 2015 WL 3932108 (Bankr. D. Idaho 2015) (applying statutory provision that debtor’s automatic homestead is lost after six months of continuous non-occupancy unless debtor records declaration of non-abandonment); In re Feliciano, 487 B.R. 47 (Bankr. D. Mass. 2013) (denying federal homestead exemption for Puerto Rico property where debtors had not lived for ten years; debtors had no immediate plans to return and structure on property was uninhabitable); In re Kerrigan-Ronan-Prew, 2013 WL 1191241 (Bankr. D. Colo. Mar. 22, 2013) (intent to return not shown even though debtor, who lived in rental accommodation in Colorado, had kept her California driver’s and real estate licenses, was seeking work in California, and had not rented out California house, in which she kept personal property); In re Taliercio, 2012 WL 441421 (Bankr. D. Conn. Feb. 19, 2012) (denying exemption when, on petition date, property was rented to tenants on one-year lease; intent to return not sufficient); In re Genzler, 426 B.R. 407 (Bankr. D. Mass. 2010) (estranged husband could not exempt marital home that he had left eleven years ago); In re Ormiston, 2010 WL 2746345 (Bankr. N.D. Okla. July 9, 2010) (denying Oklahoma exemption to debtor who lived in Switzerland when her testimony contradicted statements made in her tax filings); In re Fink, 417 B.R. 786 (Bankr. E.D. Wis. 2009) (homestead exemption unavailable when, eight years earlier, husband moved out of home and deeded it to wife as part of divorce settlement, retained a lien to secure payment of $25,000 owed to him within ten years, but had taken no steps to procure new homestead); In re Cochran, 2009 WL 605298 (Bankr. S.D. Ala. Mar. 9, 2009) (Alabama residency requirement is strict; debtor who temporarily moved in with parents and rented out homestead, because this was the only way he could afford mortgage, lost homestead exemption); In re Gaines, 2007 WL 1228157 (Bankr. M.D. Fla. Apr. 18, 2007) (intent to abandon shown; debtor stayed away five years, failed to maintain property so manufactured home was removed by city, and provided no support for assertion he left because of serious illness), aff’d, 2008 WL 3200276 (M.D. Fla. Aug. 5, 2008); In re Gott, 2006 WL 2843008 (Bankr. W.D. La. Aug. 31, 2006) (debtor lost homestead exemption in lot when she moved out of manufactured home located on it and indicated intent to surrender home to secured lender, even though she intended to put another home on site); In re Boward, 334 B.R. 350 (Bankr. D. Mass. 2005) (wife could not exempt her share of proceeds of marital home when she had moved out of state, found a job, and quitclaimed her share of house to husband); In re Maloney, 311 B.R. 525 (Bankr. W.D. Mo. 2004) (debtor moved out when she married, lived elsewhere for seventeen years; could not show intent to return, which must exist at time of leaving); In re Pierce, 2003 WL 22860034 (Bankr. D. Vt. Dec. 1, 2003) (wife abandoned her interest in former marital home when, after husband entered nursing home, she returned to parents, bought house as joint tenant with them, used that address for driver’s license and bankruptcy petition, and claimed it as homestead); In re Hunter, 295 B.R. 882 (Bankr. W.D. Ark. 2003) (homestead abandoned when parcel containing house was sold and remaining parcel used to raise livestock; debtor resided elsewhere and spent night on parcel only when attending foalings); In re Holman, 286 B.R. 882 (Bankr. D. Minn. 2002) (ex-wife, who moved out and obtained divorce prepetition, lost any homestead right she might have had as result of husband’s continued occupancy); In re Klaiber, 265 B.R. 290 (Bankr. M.D. Fla. 2001) (temporary absence for health, economic or family reasons not abandonment, but abandonment shown when debtor put house on market, took out-of-state job, and gave out-of-state address for tax and banking records); In re Weza, 248 B.R. 470 (Bankr. D.N.H. 2000) (New Hampshire resident could not claim homestead in Massachusetts property owned in tenancy by entireties with his estranged wife); Phillips v. Phillips, 2004 WL 503905 (Conn. Super. Ct. Feb. 25, 2004) (debtor owned and paid bills for house occupied by son and other relatives but ate and slept in another house he shared with wife and used that address on driver’s license); Jones, Givens, Gotcher & Bogan, Prof’l Corp. v. Berger, 46 P.3d 698 (Okla. 2002) (abandonment shown by leaving with intent not to return; may consider reasons for and duration of absence, whether home put on market or new home purchased; establishing another homestead is sufficient); Barrera v. State, 2005 WL 1691037 (Tex. App. July 21, 2005) (intent not to return shown by acquisition of new homestead); Lares v. Garza, 153 S.W.3d 97 (Tex. App. 2004) (owner who had formerly lived and worked on property was living in mother’s house and renting property to a business); In re Trustee’s Sale of Real Prop. of Brown, 250 P.3d 134 (Wash. Ct. App. 2011) (failure to file declaration of non-abandonment raises presumption of abandonment; here, debtors caused water to be turned off, stopped making mortgage payments in order to afford rent in new location, moved into apartment with one-year lease, and changed drivers licenses to new address). See also In re Davis, 2012 WL 122577 (Bankr. D. Idaho Jan. 17, 2012) (detailed discussion of Idaho procedure for acquiring and abandoning homesteads).

    ABANDONMENT NOT SHOWN: In re Karr, 278 Fed. Appx. 741 (9th Cir. 2008) (when California changed “actually resides” to “resides” in automatic homestead statute, it showed that temporary absence would not eliminate homestead; four-month absence not abandonment when personal property and dog remained on claimed locus and debtor used that address for motor vehicle and voting registration); In re Iodice, 2014 WL 4925982 (Bankr. D.N.H. Sept. 30, 2014) (once homestead established by actual use, constructive use is sufficient to maintain the exemption; allowing exemption in currently unused contiguous parcel formerly used for firewood and pasturage); In re Davila, 2014 WL 335393 (Bankr. N.D.N.C. Jan. 30, 2014) (allowing divorced debtor, who had resided in North Carolina during marriage, to claim homestead in house in Mexico; debtor had paid taxes on Mexico property, allowed family members to live there, and kept personal property there); In re McDonald, 486 B.R. 843 (Bankr. S.D. Tex. 2013) (debtor, who lived in rented space and worked at low-paying job in Louisiana, had not rented out house or listed it for sale, had kept the utilities on, visited frequently, and was actively seeking better job in Texas, showed intent “to return as soon as she is able”); In re Kology, 499 B.R. 20 (Bankr. D. Mass. 2013) (actual occupancy is key; absence of several years, living in trailer and “work camping” at campgrounds, did not bar exemption, when debtors were in residence on petition date); In re Mead, 489 B.R. 363 (Bankr. D. Vt. 2013) (abandonment not shown; home was burnt down, and debtor resided sporadically in hunting cabin on contiguous parcel and credibly testified he intended to live in cabin); In re Schott, 449 B.R. 697 (Bankr. W.D. Tex. Mar. 16, 2011) (intent to stay away permanently not shown when debtor moved to city for business reasons; here, to construct a “spec house”); In re Belding, 2010 WL 5376295 (Bankr. D. Vt. Dec. 23, 2010) (intent to return is critical issue; allowing debtors who resided more than half the year in Florida apartment to claim homestead in family home in Vermont; debtors paid resident income taxes in Vermont, owned no real property in Florida, and had not registered to vote there); In re Gedenk, 2010 WL 4257489 (Bankr. N.D. Ill. Oct. 20, 2010) (allowing debtors who resided with family member in Illinois and used Illinois address for voting and drivers’ licenses to exempt Wisconsin home to which they planned to return when wife finished lengthy course of medical treatment in Illinois); In re Forshee, 2010 WL 3711918 (Bankr. D. Idaho Sept. 17, 2010) (debtor residing in short-term rental housing in Utah, working at job with three-month contract, who had not changed voter registration or drivers’ license and believed she could reconcile with husband, could exempt former marital home in Idaho); In re Curry, 2009 WL 5198294 (Bankr. D. Kan. Dec. 22, 2009) (Kansas fiercely protects homestead once established; allowing homestead in old family home for debtors who worked, voted, and registered their cars in another city where they resided in apartment); In re Melito, 357 B.R. 684 (Bankr. D. Mass. 2007) (homestead statute requires a writing to terminate homestead; declining to consider whether abandonment also terminates it, as debtors here merely vacated home to accommodate prospective buyer whose financing then fell through); In re Ledzey, 2007 WL 295213 (Bankr. M.D. Fla. Jan. 30, 2007) (intent to discontinue homestead not shown when debtor lived on property but a scrivener’s error, corrected as soon as discovered, caused deed to be recorded transferring property); Devine v. Devine, 2005 WL 1926038 (Bankr. N.D. Iowa Aug. 5, 2005) (farmers intending to return to farming could claim homestead in farmhouse even though living in rented apartment and working off-farm); In re Woodruff, 2005 WL 1139891 (Bankr. W.D. Mo. Apr. 28, 2005) (non-occupancy creates presumption of abandonment, rebuttable by evidence that, at the time debtor vacated residence, he intended to return); In re Marrama, 307 B.R. 332 (Bankr. D. Mass. 2004) (once homestead filed, creditor alleging abandonment must provide “unequivocal evidence”; not shown when owner was living in unheated summer cottage in Maine and leasing home to tenants; owner testified he intended to move back when lease expired), aff’d on other grounds, 316 B.R. 418 (B.A.P. 1st Cir. 2004); In re Murphy, 292 B.R. 403 (Bankr. D.N.D. 2003) (debtor rented home to tenants while attending graduate school out-of-state, but was on leave of absence and continued to receive medical benefits from North Dakota job and paid taxes and insurance on house in which she had left personal property); In re Patterson, 275 B.R. 578 (Bankr. D. Colo. 2002) (presumption of abandonment rebutted; family fled from vandalism and stalking, left belongings in the house, did significant renovations, kept up mortgage payments, and returned when stalker left the area); In re Kimball, 270 B.R. 471 (Bankr. W.D. Ark. 2001) (once homestead established, it survives divorce; abandonment not shown when debtor lived in homestead on date of petition, even though she had listed house for sale as required by divorce decree); In re Laing, 242 B.R. 538 (Bankr. S.D. Fla. 1999) (homestead may be lost by abandonment but no intent to abandon when debtor lived with girlfriend and rented out homestead, then returned to homestead); In re Anderson, 240 B.R. 254 (Bankr. W.D. Tex. 1999) (abandonment not shown under federal bankruptcy exemption when debtor in army rented out house but listed it as her home in military records and intended to return there); In re Sebio, 237 B.R. 1 (Bankr. D. Mass. 1999) (summer home was exempt when owner filed homestead declaration for it and subsequently moved there for year-round occupancy); In re Harrison, 236 B.R. 788 (Bankr. M.D. Fla. 1999) (homestead not abandoned when debtor co-owner was living elsewhere because of divorce but house was on market and debtor intended to invest her share of proceeds in new homestead); In re Lazin, 221 B.R. 982 (Bankr. M.D. Fla. 1998) (payment of year’s rent on Pennsylvania apartment did not defeat claim of homestead in Florida condominium when debtor was living in condominium and had moved to Florida for health reasons); LPP Mortg., Ltd. v. Meurer, 2004 WL 57585 (Iowa Ct. App. Jan. 14, 2004) (intent to return shown when debtor lost job and worked out-of-state after divorce, but home was occupied by relatives, debtor visited most weekends, and his employer planned to open facility in Iowa); Lamkin v. Flanagan, 865 So. 2d 916 (La. Ct. App. 2004) (paying taxes and making repairs sufficient to maintain homestead exemption when debtor testified he intended to return to home, even though because of health problems he spent only two or three nights there over seven years); Drake Interiors, L.L.C. v. Thomas, 433 S.W.3d 841 (Tex. App. 2014) (creditor failed to show abandonment when ex-wife moved back and forth between two pieces of property before choosing former marital home as homestead); Union Square Fed. Credit Union v. Clay, 2009 WL 1099434 (Tex. App. Apr. 23, 2009) (debtors had lived in new house for four years but did not lose homestead exemption for old house which they had neither sold nor rented, continued to maintain, and where they kept personal property); Pierce v. Wash. Mut. Bank, 226 S.W.3d 711 (Tex. App. 2007) (if new homestead not established, abandonment is fact question; must show voluntary departure and manifestation of intent not to return); Wilcox v. Marriott, 103 S.W.3d 469 (Tex. App. 2003) (factual question of owner’s intent to use property as homestead precludes summary judgment); Estate of Montague v. Nat’l Loan Inv’rs, Ltd. P’ship, 70 S.W.3d 242 (Tex. App. 2001) (debtors did not abandon homestead despite their declaration that it was not homestead when they continued to live there and never left it without returning). See also In re Newcomb, 2009 WL 961503 (Bankr. D. Mass. Apr. 8, 2008) (Massachusetts homestead may be terminated, during the life of the owner, only by a release, recorded in the registry of deeds, or by a deed, recorded or unrecorded, that does not reserve homestead). See generally § 15.2.4.1, supra (occupancy).

  • 91 EXEMPTION LOST: In re Martinez, 595 B.R. 912 (Bankr. S.D. Fla. 2019) (property rented to tenant, with whom debtor unsuccessfully negotiated for sale, then demanded substantial sum to allow long-term rental); Lares v. Garza, 153 S.W.3d 97 (Tex. App. 2004) (owner who had formerly lived and worked on property was living in mother’s house and renting the property to a business).

    PROPERTY EXEMPT: In re Pearson, 570 B.R. 237 (Bankr. N.D. Tex. 2017) (exempting land informally leased to partnership of debtor and his father; intent to resume control is key, and debtor expressed intention to farm land personally after father’s retirement); In re Patterson, 487 B.R. 485 (Bankr. W.D. Tenn. 2013) (allowing exemption for property formerly rented to tenants; debtor’s present right to occupy was sufficient); In re Giles, 443 B.R. 524 (Bankr. W.D. Ark. 2011) (debtors did not abandon homestead by selling portion of land on which their home was located, where they built another home on the remainder, nor by establishing a small family-run business on it); In re Haning, 252 B.R. 799 (Bankr. M.D. Fla. 2000) (Florida homestead exemption protected garage, located on same parcel as residence, which owner used for a used car business, but would be lost if owner rented out part of property to another for business purposes); Owens v. Hawkins, 2012 WL 1366577 (Tex. App. Apr. 18, 2012) (“continuously” renting homestead will destroy exemption; not shown here when debtor had rented out a cabin on his property). See also Siewak v. AmSouth Bank, 2007 WL 141186 (M.D. Fla. Jan. 16, 2007) (fact question whether business use eliminated homestead exemption). See generally § 15.2.4.1, supra (use of part of homestead for business purposes).

  • 92 In re Crump, 533 B.R. 567 (Bankr. N.D. Tex. 2015) (once property has been used for homestead purposes, heavy burden on creditor to show abandonment); Drake Interiors, L.L.C. v. Thomas, 433 S.W.3d 841 (Tex. App. 2014).

  • 93 In re Smith, 668 Fed. Appx. 105 (5th Cir. 2016) (Tex. law) (affirming homestead exemption for property debtor intended to sell; homestead was established when he resided in home with elderly relative and continued to reside there when he inherited property; homestead once established can be lost only by death, abandonment, or alienation); Nealon v. Matthews, 2016 WL 312409 (B.A.P. 1st Cir. Jan. 20, 2016) (Mass. law) (allowing exemption of four contiguous parcels that were being used for homestead purposes on petition date, even though land had been subdivided in pursuit of subdivision plan, which failed because of financial and regulatory constraints); In re Wengerd, 453 B.R. 243 (B.A.P. 6th Cir. 2011) (when debtors owned and resided in property on petition date, it was homestead, even though they had entered into contract to sell it and sale closed four days later); In re Ward, 595 B.R. 127 (Bankr. E.D.N.Y. 2018) (applying rule of liberal construction to exempt home debtor occupied on petition date but had contracted to sell); In re Fix, 542 B.R. 502 (Bankr. D. Mont. 2015) (Minnesota homestead not abandoned; debtors had contracted to sell house but on petition date sale had not yet closed and wife continued to reside there); In re Kadoch, 528 B.R. 626 (Bankr. D. Vt. 2015) (allowing exemption of property that debtor had been ordered to sell by divorce decree, even though debtor had been held in contempt for failure to sell; decree allowed debtor to reside there until sale), aff’d, 662 Fed. Appx. 26 (2d Cir. 2016); In re Bellefiore, 492 B.R. 109 (Bankr. E.D.N.Y. 2013) (allowing homestead for debtor who resided in long-term home on petition date, even though it was subject to contract to sell; sale closed a few days later); In re Vick, 2008 WL 2444526 (Bankr. S.D. Fla. June 16, 2008) (contract to sell did not extinguish homestead; exemption survives until debtor establishes new domicile or “alienates” old homestead); In re Troutman, 378 B.R. 331 (Bankr. W.D. Okla. 2007) (contract of sale does not eliminate homestead; exemption survives until property is formally handed over to buyer at closing); In re Martiny, 378 B.R. 52 (Bankr. W.D.N.Y. 2007) (debtors currently residing in home they have contracted to sell may claim homestead); In re Caudill, 2007 WL 3171745 (Bankr. S.D. Tex. Oct. 25, 2007) (abandonment not shown when property was listed for sale, but debtor resided there at all relevant times); In re Baker, 307 B.R. 860 (Bankr. N.D. Tex. 2003) (intention to sell or even pending sale not abandonment). See also In re Elliot, 523 B.R. 188 (B.A.P. 9th Cir. 2014) (California’s automatic homestead exemption will survive transfers of ownership as long as debtor actually resides on property with intent to make it his home); In re Mixon, 2014 WL 28669 (Bankr. S.D. Ga. Jan. 2, 2014) (drawing up subdivision plat that was never recorded did not eliminate exemption); In re Gentry, 459 B.R. 861 (Bankr. M.D. Fla. 2011) (abandonment shown only by moving away and taking up residence elsewhere; not shown where debtor who could not afford to reaffirm intended to remain in home until forced out by foreclosure); In re Westmeyer, 2010 WL 2103571 (Bankr. N.D. Iowa May 24, 2010) (attempt to sell house in response to divorce court order not voluntary abandonment—even though debtor had moved out—where debtor intended to reinvest proceeds in new home). But see In re Lynn, 2013 WL 6234511 (B.A.P. 9th Cir. Dec. 2, 2013) (Idaho law) (denying exemption; listing property for sale, as required by divorce decree, and absence of efforts to make a home on unoccupied property); Carpenter v. Brown, 2013 WL 4047017 (S.D. Fla. 2013) (debtor was living on property on petition date, but property subject to contract for sale, with provision allowing buyer specific performance if seller defaulted; placing property on market was sufficient to show abandonment); In re Kology, 499 B.R. 20 (Bankr. D. Mass. 2013) (preparation of subdivision plat, which was approved by town, and construction of road showed abandonment of vacant lot contiguous to homestead parcel).

  • 94 In re Perry, 481 B.R. 862 (Bankr. N.D. Tex. 2012) (moving out of residence, and stating intent to surrender it to creditor in bankruptcy, showed abandonment); In re Ellis, 456 B.R. 401 (Bankr. E.D. Ark. 2011) (homestead lost when debtors contracted to sell home, received large payment, and used it to buy new home; not reestablished when, after sale fell through, debtors planned to move back into former home); Bovey v. Coffey, 2012 WL 1448530 (Tex. App. Apr. 26, 2012) (conveyance of the homestead to another, even if without consideration and with the belief that it would be conveyed back to grantor, was abandonment sufficient to end homestead exemption; note that debtor also lived elsewhere).

  • 95 In re Brei, 599 B.R. 880 (Bankr. N.D. Tex. 2019).

  • 96 In re Pendley, 2013 WL 141595 (Bankr. W.D. Tex. Jan. 11, 2013) (denying exemption for new home in which debtor resided; old homestead not abandoned when debtor’s wife and daughter remained in foreclosed home while daughter finished school year); In re Younger, 373 B.R. 111 (Bankr. D. Idaho 2007) (property not shown to be abandoned before sale when debtor spent some nights on property and removed his belongings only when purchaser gave him one week to do so); In re Melito, 357 B.R. 684 (Bankr. D. Mass. 2007) (debtors who were living in apartment could claim homestead exemption in home vacated to accommodate prospective buyer whose financing had fallen through); In re Seeley, 341 B.R. 277 (Bankr. W.D. Mo. 2006) (debtor who moved out of home in anticipation of selling it had not abandoned homestead when she intended to invest sale proceedings in another home); In re Huddleston, 2005 WL 2271859 (Bankr. C.D. Ill. Sept. 7, 2005) (debtors who vacated two-story residence because of health problems and put home on the market able to claim homestead when they demonstrated good faith intent to sell home and invest proceeds in one-story homestead within a reasonable period of time); In re Wagenbach, 232 B.R. 112 (Bankr. C.D. Ill. 1999) (proceeds exempt even though debtors moved out of home before closing, when they continued to maintain old home and intended to use proceeds to buy new home); McMillan v. Aru, 773 So. 2d 355 (Miss. Ct. App. 2000) (sheriff’s sale permanently enjoined when sellers had moved out and judgment creditor attached after closing but before deed recorded; homestead exemption survived until deed executed, after which sellers had no interest left); Union Square Fed. Credit Union v. Clay, 2009 WL 1099434 (Tex. App. Apr. 23, 2009) (buying and moving into new house did not establish new homestead; debtors could claim exemption for old house they continued to maintain—and had neither sold nor rented—where they left personal property). But cf. In re Johnson, 2009 WL 2848983 (Bankr. E.D. La. May 14, 2009) (homestead exemption was lost where owner moved out of damaged house and filed for homestead tax exemption for home she temporarily occupied); Barrera v. State, 2005 WL 1691037 (Tex. App. July 21, 2005) (intent not to return shown by acquisition of new homestead; strong showing of abandonment when furniture moved to new house, new address used for business, taxes, mail, and driver’s license).

  • 97 See § 13.3.3, supra.

  • 98 See, e.g., In re Diaz, 547 B.R. 329 (B.A.P. 9th Cir. 2016) (Cal. law) (on petition date, debtor was living in mother’s home while he recovered from major stroke; temporary absence does not terminate homestead; key issue is intent to return); United States v. Neff, 2007 WL 776532 (D.N.D. Mar. 12, 2007) (abandonment not shown when farmer moved to town to care for frail eighty-eight-year-old mother, leaving many belongings in farmhouse, which was neglected but needed only minor repairs); In re Briggs, 2019 WL 494110 (Bankr. S.D. Ind. Feb. 7, 2019) (allowing exemption to debtor who moved out when mold infestation—which she could not afford to remediate—aggravated her health problems; noting that problem was “temporary and fixable” and distinguishing cases in which severe health problems would prevent debtor from ever returning); In re Voliva, 2011 WL 6301232 (Bankr. E.D.N.C. Dec. 16, 2011) (allowing exemption when debtors were living with their son on petition date because of medical problems but utilities were turned on in manufactured home on property where they had lived for ten years); In re McKeithan, 2011 WL 1331986 (Bankr. E.D. Tex. Apr. 7, 2011) (homestead not lost when frail elderly debtor was forced to move in with daughter; abandonment must be voluntary), aff’d, 486 Fed. Appx. 482 (5th Cir. 2012); In re Seeley, 341 B.R. 277 (Bankr. W.D. Mo. 2006) (presumption of abandonment rebutted when debtor intended, at time of removal, to return once health problems and children’s problems with school system were resolved); In re Huddleston, 2005 WL 2271859 (Bankr. C.D. Ill. Sept. 7, 2005) (allowing homestead; debtors vacated two-story residence because of health problems but intended to sell it and invest proceeds in one-story homestead); In re Owens, 269 B.R. 794 (Bankr. N.D. Ill. 2001) (not abandonment when debtor left state to care for mother during long illness, but kept in touch with Illinois employer and hoped to resume her job upon return); Citizens State Bank v. Ruebel, 804 N.W.2d 314 (Iowa Ct. App. 2011) (sick elderly debtor moved in with daughter, leaving most of her belongings in her home of fifty years; abandonment not shown); Farstveet v. Rudolph, 630 N.W.2d 24 (N.D. 2000) (no abandonment when debtor went into hospital and nursing home, even though relatives lived in home and sold belongings to pay medical bills). Cf. Meadow Wind Health Care Ctr. v. McInnes, 2000 Ohio App. LEXIS 3415 (Ohio Ct. App. July 24, 2000) (fact question whether homestead abandoned during nursing home stay when debtor used nursing home address for mail and voting but eventually returned home). But see In re Burns, 218 B.R. 897 (Bankr. N.D. Ind. 1998) (actual residence, not legal domicile, determines availability of homestead exemption; ninety-eight-year-old debtor who resided with daughter because of his poor health could not claim homestead exemption in his former home). But cf. In re Naputi, 2007 WL 1864075 (Bankr. D. Idaho June 28, 2007) (six-month absence without filing homestead declaration creates rebuttable presumption of abandonment; debtors left home to help sister care for terminally ill husband but remained for over a year after his death; claim that hiring freeze prevented return to former jobs not sufficient to rebut presumption); In re Estate of Lindell, 2014 WL 7344158 (Minn. Ct. App. Dec. 29, 2014) (homestead lost when healthcare proxy caused demented homeowner to be moved to memory care facility; proxy had right to make decision and clearly showed intent that homeowner should not return to property).

  • 99 See, e.g., In re Lloyd, 394 B.R. 605 (Bankr. S.D. Fla. 2008) (allowing Florida homestead to debtor who was living in month-to-month rental in California but frequently returned to Florida to maintain uninhabitable hurricane-damaged property and had not established new homestead); In re Foster, 348 B.R. 58 (Bankr. E.D.N.C. 2006) (debtor could claim homestead in property rendered uninhabitable by hurricane damage when she was living in camper, paying property taxes and storing personal belongings on property, and seeking financial help for repairs; intent to return is key). See also In re Gill, 2011 WL 4712087 (Bankr. M.D.N.C. Aug. 19, 2011) (debtor who moved out because of mold contamination he could not afford to remediate, but continued to pay mortgage and did not change address on drivers’ license, did not abandon homestead).

  • 100 In re Furlong, 2017 WL 3981108 (Bankr. D.N.H. Sept. 8, 2017) (allowing exemption; debtor, who had established homestead in New Hampshire, spent winters in Florida and travelled between Maine and New Hampshire in summer, but had not established new homestead); In re Simpson, 206 B.R. 230 (Bankr. E.D. Okla. 1997) (Oklahoma property was exempt homestead when owner had lived there for a year, intended to retire there, and had never rented it out or turned off the utilities, even though owner worked in Texas during the work week and on some weekends); McCone Cty. Fed. Credit Union v. Gribble, 216 P.3d 206 (Mont. 2009) (debtor who had a “traveling job” kept all his belongings in house; residence is “the place where a person remains when not called elsewhere for labor or other temporary purpose, and to which the person returns in seasons of repose”); In re Estate of Casida, 13 S.W.3d 519 (Tex. App. 2000) (abandonment not shown when homeowner traveled a lot but returned several times a year and did not remove furnishings from home or acquire other real estate). See also In re McDonald, 486 B.R. 843 (Bankr. S.D. Tex. 2013) (debtor showed intent “to return as soon as she is able”; she lived in rented space and worked at low-paying job in Louisiana but had not rented out house or listed it for sale, had kept the utilities on, visited frequently, and was actively seeking better job in Texas). But see In re Abraham, 2014 WL 3377370 (Bankr. D.N.J. July 10, 2014) (denying homestead exemption to debtors who lived and worked abroad when their non-dependent adult children occupied and maintained the home; disregarding testimony of intent to return because no evidence of job search).

  • 101 In re Roberts, 450 B.R. 159 (N.D. Iowa 2011) (homestead not lost when couple agreed to separation agreement that barred debtor from former marital home); In re Colton, 591 B.R. 829 (Bankr. C.D. Ill. 2018) (where wife stated intention to reside in home if it was awarded to her in divorce, homestead was not lost when she and children moved out; noting that danger might result if couples embroiled in conflict were required to live together to preserve property rights); In re Wenstrom, 2013 WL 321678 (Bankr. D.N.D. Jan. 28, 2013) (exempting buy-out payment awarded to wife who was required to quitclaim her share of marital home to husband; leaving home because of marital strife was not abandonment); In re Marcovitz, 2011 WL 5041507 (Bankr. D. Idaho Oct. 24, 2011) (failure to file declaration of non-abandonment created rebuttable presumption of abandonment; rebutted here when court order in divorce required debtor to move out); In re Moulterie, 398 B.R. 501 (Bankr. E.D.N.Y. 2008) (allowing homestead exemption to debtor-husband because family court granted exclusive occupancy to wife while property division being resolved; noting that danger might result if parties to acrimonious divorce were compelled to live together to avoid loss of property); In re Dubravsky, 374 B.R. 467 (Bankr. D.N.H. 2007) (leaving home when required by divorce decree not abandonment; home here to be sold at later date and proceeds divided); In re Lindsey, 2006 WL 4112666 (Bankr. M.D. Fla. Dec. 13, 2006) (allowing homestead exemption; debtor not residing on premises because she feared for safety of self and children while ex-husband lived nearby); In re MacFarlane, 325 B.R. 908 (Bankr. M.D. Fla. 2005) (intent to abandon not shown when domestic violence order barred debtor from home); In re Ballato, 318 B.R. 205 (Bankr. M.D. Fla. 2004) (ex-husband excluded by restraining order could claim homestead exemption in his share of sale proceeds of former marital home); In re Detko, 290 B.R. 494 (Bankr. D. Vt. 2003) (living in Florida for six months, opening bank account and obtaining driver’s license there, and putting house on market not abandonment when debtor was fleeing violent alcoholic ex-husband); In re Chase, 2003 WL 22454876 (Bankr. D.N.H. Oct. 14, 2003) (temporary and involuntary absence resulting from incarceration or restraining order not abandonment, but failure to return after restraining order ended showed establishment of new home); In re Taylor, 280 B.R. 294 (Bankr. D. Mass. 2002) (debtor wife who left home because of marital problems could claim homestead); In re Webber, 278 B.R. 294 (Bankr. D. Mass. 2002) (debtor husband excluded by restraining order; continued occupation by wife and children sufficient to maintain homestead); Phillips v. Fuller, 814 So. 2d 885 (Ala. Civ. App. 2001) (homestead not abandoned by wife who fled abusive husband); Coy v. Mango Bay Prop. & Invs., Inc., 963 So. 2d 873 (Fla. Dist. Ct. App. 2007) (homestead, once acquired, not lost by court order awarding possession to other spouse; ex-husband entitled to hearing on claim of homestead in former marital home, titled in wife alone); Chrissikos v. Chrissikos, 2002 WL 342653 (Tex. App. Mar. 6, 2002) (wife moved out during divorce). See also In re Westmeyer, 2010 WL 2103571 (Bankr. N.D. Iowa May 24, 2010) (attempt to sell house in response to divorce court order not voluntary abandonment, even though debtor had moved out, where debtor intended to reinvest proceeds in new home); In re Gott, 2006 WL 2843008 (Bankr. W.D. La. Aug. 31, 2006) (homestead exemption not lost where debtor fled from harassment and threats of violence from her child’s father, but exemption was lost where debtor surrendered manufactured home, leaving land vacant); In re Nguyen, 332 B.R. 393 (Bankr. W.D. Mo. 2005) (debtor did not abandon home by moving to mother’s nearby home and staying there seven months after fight with domestic partner). Cf. In re McClamrock, 2004 WL 229521 (Bankr. M.D.N.C. Feb. 5, 2004) (leaving former home to escape abusive husband not abandonment, but failure to return for years after he left showed that absence not temporary). But see In re Wilson, 341 B.R. 21 (B.A.P. 9th Cir. 2006) (Wash. law) (no automatic homestead when court order had barred husband from occupancy; declared homestead came too late when it was filed after divorce decree had divested husband of interest in property). But cf. In re Herding, 2007 WL 397276 (Bankr. D.S.D. Jan. 31, 2007) (debtor, originally excluded from home by family court order, showed intent not to return when he stopped making mortgage payments and, in settlement negotiations, offered house to wife).

  • 102 Polk v. Polk, 2009 WL 2613930 (Cal. Ct. App. Aug. 26, 2009) (prisoner sentenced to life imprisonment, but appeal pending; could have claimed exemption while awaiting trial, but not after conviction and sentence); Stewart v. Bader, 907 A.2d 931 (N.H. 2006) (prison inmate serving life sentence without possibility of parole could not claim homestead, absence not temporary).

  • 103 In re Gerholdt, 2011 WL 4352353 (Bankr. N.D. Iowa Sept. 16, 2011) (allowing prisoner starting fourteen-year sentence to claim homestead currently being leased to tenants); Holden v. Cribb, 561 S.E.2d 634 (S.C. Ct. App. 2002) (homestead not abandoned when homeowner in jail because no intent to make jail his permanent home); Alamanza v. Salas, 2014 WL 554807 (Tex. App. Feb. 22, 2014) (incarceration not abandonment, so home was homestead); Driver v. Conley, 320 S.W.3d 516 (Tex. App. 2010) (prisoner serving long sentence did not voluntarily abandon homestead). See also Gibson v. Fauber, 2004 WL 2002560 (Tex. App. Sept. 8, 2004) (debtor lived elsewhere only when incarcerated or working at out-of-town jobs). But see Old Republic Nat’l Title Ins. v. Kornegay, 292 P.3d 1111 (Colo. App. 2012) (prisoner’s intent to return to former home not sufficient to support homestead exemption); In re Arrington, 167 Wash. App. 1019 (Wash. Ct. App. 2012) (incarceration for more than six months is voluntary abandonment, which terminates homestead exemption; this debtor did not file declaration of non-abandonment). But cf. Shumway v. Betty Black Living Tr., 321 P.3d 372 (Alaska 2014) (intent to occupy not shown where debtor, who was on felony probation when he moved to Alaska, was returned to Arizona prison because of violations; Arizona authorities would have final say as to whether he could return to Alaska after release).