I noticed that the new Declaration of Homestead law requires both spouses to execute the document. What happens in a case where the spouses aren't getting along and one spouse refuses to sign the form. Does this mean the other spouse is precluded from obtaining a homestead?
I don't believe the law addresses this scenario, but laws can't cover every
possible set of facts so often the answer to a question like this must await an
appellate court decision on each unique issue that arises. That works well for
everyone except the guy who has to be the first to litigate the
issue.
Absent such a court decision, here's how I would analyze
the question posed: Section 5 of Chapter 188 (the Homestead law) would apply. While section 5(a)(3) specifically states that where the
property is jointly owned by a married couple, the homestead "shall be executed
by both spouses." But section 5(a) says it shall be signed "by each owner to be
benefitted by the homestead." If one spouse is not interested in obtaining a
homestead, it would make no sense to prohibit the other from doing so just
because of the recalcitrant spouse. And I assume the empahsis on both spouses
signing is because that's the exact opposite of the case under the prior version
of the homestead law which only allowed one spouse to sign.
If I was an attorney advising a client in this situation
(which I most definitely am not - this is just speculation) I would say to fill
out the homestead in his own name, make a note somewhere on it that the property
is co-owned by SPOUSE but that she refuses to sign and he wishes to obtain a
homestead on his interest in the property then I would record that. But, if
such a homestead were ever challenged, it would signal the start of a lengthy
period of litigation over the issue
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I agree with your analysis. The most likely scenario for a challenge to a declaration as you describe would be the bankruptcy of the spouse that did NOT sign the declaration. The bankruptcy trustee could argue that the declaration of one spouse doesn't cover the half interest of the spouse that didn't sign. That said, the courts consistently interpret homesteads liberally for the benefit of the declarant. Incidentally, the SJC is considering whether, under the old homestead law, a mere beneficiary of a trust can declare a homestead on realty held by the trust. Under the new law, such a declaration would fail as "only the trustee" can declare a homestead. Look for the opinion in the case of Weiss v. Boyle which should be released in the next month. Better late than never.
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