If I am over 62 and my spouse is under 62, should we both file?

Yes. Pursuant to M.G.L. Chapter 188, Section 2(b), an elderly homestead protection for the individual over the age of 62 is personal to the qualifying individual and will terminate upon the transfer of their ownership interest, subsequent declaration of homestead on another property, abandonment or death. In order to ensure that the homestead protection does not terminate unexpectedly for the spouse that is under the age of 62, one homestead should be filed per owner. This is a noteworthy change under the new law. Under the former statute, filing a new declaration of homestead voided any earlier homestead which could have opened up a claim period for previous creditors, leaving homeowners unprotected for a period of time. Effective March 16, 2011, a second homestead declaration shall relate back to the first declaration, thereby ensuring that the homeowners maintain their homestead protection.

When your spouse turns 62 and qualifies for an elderly homestead protection, you may also consider filing another elderly homestead on their behalf. If and when you and your spouse both qualify as elderly, you may aggregate each personal five hundred thousand dollar ($500,000) protection to one million dollar ($1,000,000). In all cases, you may want to consult an attorney to take any personal matters into consideration.