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Serving
Massachusetts Agencies

Release: Failure to Reserve

Homestead

In In re Hildebrandt, 313 B.R. 535 (2004), which was affirmed on appeal, it appeared that Brian and Ann owned property on which Brian had declared a homestead. Both Brian and Ann joined in a deed to Brian. There was no mention of the homestead in the deed. When Brian filed for bankruptcy and claimed the homestead as exempt, the court ruled that he had release the homestead and could no longer claim it as an exemption:

[Under §7] an estate of homestead created under section two may be terminated during the lifetime of the owner by a "deed conveying the property in which an estate of homestead exists . . . which does not specifically reserve said estate."

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Despite the debtor's insistence that the 2003 deed was a "self-transfer" and not a conveyance under §7 [to a third party], thereby excepting the homestead from termination, this court finds no basis for such an argument given the plain meaning of the statute. The 2003 deed conveyed title in the residence from [Ann] and the debtor as tenants in common to the debtor as sole owner. Since no reservation of then homestead was made [as the statute] requires, the 2003 deed terminated the homestead.

Had Brian not joined in the deed to him from Ann and himself, it appears that the result would have been different.