Homestead in Mississippi
By Brad Golmon
We all understand that your homestead is where you and your family live, and that a man’s home is his castle and it’s where the heart is, too. But did you know that there are at least four different ways that Mississippi law protects your homestead? It’s easy to lump all of these four together, but keeping them separate in your thinking can aid in making good decisions and might keep you from some bad ones.
First, and most common, is the homestead tax exemption. This is the filing that homeowners can make that reduces their ad valorem property taxes. That election is made with a filing with the tax assessor for your county under the authority of Mississippi Code Annotated Section 27-33-3. You must file for homestead tax exemption by April 1 to claim the exemption for that tax year. Once on file, it renews from year to year until record title changes, such as when you sell your home.
Second, there is an exemption, or protection, from the claims of creditors that relates to the homestead of persons living in Mississippi. This protection is contained in Section 85-3-21of Mississippi’s Code and protects your home from creditors up to $75,000 worth of equity in the home or 160 acres of land, which ever is the lesser value. You do not have to make the homestead tax exemption filing to have this protection. In fact, Section 85-3-35 says that if for whatever reason you have not made the tax exemption filing you still get the protection. However, if you own more than 160 acres of land it will be necessary to decide which part of your property obtains the protection. The law provides that the sheriff nominate a committee of local landowners to make the decision. Still, it seems better to make that choice yourself and make sure to have the tax exempt filing before it ever comes to this, even though the protection from the claims of creditors is not contingent upon making that filing.
Third, one spouse cannot sell or mortgage the homestead property without the signature and consent of the other spouse, regardless of title. Even if a husband or wife owns the family home outright, he or she cannot sell it or borrow against it without the consent of the other. This protection for non-title owning spouses is found in Section 89-1-29. It goes as far as prohibiting the use of a power-of-attorney by one spouse to circumvent the statute. This law is designed to prevent one spouse (the owner) from selling or giving away the marital home and leaving the other spouse destitute.
Finally, if a spouse dies, the surviving spouse has a right to remain in the family home, regardless of title or inheritance. Section 91-2-23 provides this “widow’s/widower’s right” and ties this into the other concepts by making reference to “exempt property.” If there is “exempt property,” that is, if there is a family home, regardless of a tax exemption filing, then a surviving spouse, even in the absence of a title right, has the right to remain in the home for the rest of his or her life, so long as she occupies the property.
Mississippi law has taken these steps to protect families and family members because we believe that families are important. Knowing how these elements of the protection fit together is important, too.