A Foreign Debtor May Qualify for Florida Homestead Exception

Jenna Kirkland

St. John’s University School of Law

American Bankruptcy Institute Law Review Staff


         In In re De Bauer, a bankruptcy court in Florida held that a debtor who was not a permanent resident of the United States was entitled to the Florida homestead exemption.[1] Adaluz Rojas De Bauer (“Debtor”), who is not a permanent resident or citizen of the United States, filed a voluntary petition for relief under Chapter 7 of the title 11 of the United States Code (the “Bankruptcy Code”).[2] On her bankruptcy schedules, she disclosed a home (“Home”), where she resides with her daughter and son in law, and identified it as exempt property under Florida state law.[3] The Chapter 7 Trustee appointed to the Debtor’s bankruptcy case objected to the Debtor’s  Florida homestead exemption arguing that she could not claim the exemption because  she was not a lawful resident of the United States. [4]

         The Florida bankruptcy court overruled the Trustee’s objections finding that a debtor’s homestead exemption did not depend on the debtor’s status in the United States. According to the court, “‘Homeowners seeking to qualify for the homestead exception must meet both an objective and subjective test. First, they must actually use and occupy the home. Second, they must express an actual intent to live permanently in the home.’”[5] Here, the Debtor met the first objective test because she consistently resided at the Home for approximately 20 years.[6] Moreover, the Debtor demonstrated that she actually intended to permanently live in her Home as evidenced by the residency status of her daughter and son-in-law. The Court reasoned that “for the Debtor to formulate an actual subjective intent to permanently reside in her Home and claim it exempt under Florida law, at least one family member living in the Home must demonstrate sufficient credible attempts to gain legal status of a permanent resident in the United States. A formal legal request is required.”[7] Here, the Debtor met the subjective test because Debtor’s daughter enrolled in the Deferred Action for Childhood Arrivals (“DACA”) program in 2012 and hopes to gain permanent legal residency under the program.[8] However, if she is unsuccessful under DACA, she also applied for a “green card,” which would grant her permanent legal residency when approved.[9] Moreover, the Debtor’s daughter is married to a U.S. citizen, which was further evidence in support of the subjective test.[10]

         The Florida bankruptcy court concluded that although the Debtor is not herself a permanent resident in the United States, she may rely on her daughter and son-in-law’s residency status to qualify for the Florida homestead exception.[11] Therefore, a foreign debtor who resides with at least one family member that has made credible attempts to gain legal residency status may claim the Home as exempt under Florida law and exclude it from property of her bankruptcy estate.[12]

[1] See In re De Bauer, 628 B.R. 355, 357 (Bankr. M.D. Fla. 2021).

[2] Id.

[3] Id.

[4] Id. at 356–57.

[5] Id. at 358 (quoting In re Harle, 422 B.R. 310, 314 (Bank. M.D. Fla. 2010).

[6] In re De Bauer, 628 B.R. at 358.

[7] Id. at 359.

[8] Id.

[9] Id. at 357.

[10] Id. at 359.

[11] Id.

[12] Id.