Florida Residency Legal Guide and Requirements - Alper Law (2024)

Florida residency can be claimed only by someone who primarily lives in Florida. Some people want to become Florida residents to escape state income tax andinheritance tax. Other people want to become Florida residents to take advantage of itsasset protection laws.

The term “Florida resident” has different meanings under different parts of Florida law. For state income tax purposes, establishing residency in Florida requires physical presence in Florida most of the year. Forasset protection, there is no minimum occupancy requirement to be a Florida resident.

Instead, Florida residency for asset protection requires one to demonstrate an intent to maintain their primary residence in Florida. Florida courts consider various factors evidencing an intent to live in Florida.

Tax Purposes

Becoming a Florida resident means something different in terms of state income tax than it does in terms of Florida asset protection. Income tax residency is not a Florida issue because Florida has no income tax. This is a taxation issue for the state of one’s other residence, typically “up north.”

The taxing state has the monetary incentive to retain one’s residency and deny Florida residence. The taxing state authority sets its rules for the qualification of Florida residency to avoid state taxation.

To become a Florida resident for taxes, you will need to be living in Florida for more than six months. A tax professional in the taxing state can explain the taxing state’s requirements and guidelines for determining whether or not you have become a Florida resident.

Asset Protection

Generally, only Florida residents may take advantage of Florida’sliberal asset protection laws. For instance, to protect money in aFlorida homestead propertyor in other assets protected by Florida statutes, one must first establish oneself as a Florida resident.

Forasset protectionpurposes, Florida residency means more than just owning Florida property or having a Florida address. Whether or not you qualify as a permanent Florida resident depends on whether your circ*mstances and your actions demonstrate your intent to establish a primary place of residence in Florida. When “going home” means you are returning to your residence in Florida, and when your mail is sent to your Florida address, you are probably a Florida resident.

Florida Statute § 196.012defines a permanent residence as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.”

How to Become a Florida Resident

A Florida resident means being recognized as a resident of Florida for legal, tax, and educational purposes. Being a resident of Florida affects your taxes, tuition for in-state universities and colleges, and asset protection opportunities.

To become a Florida resident, you must intend to maintain Florida as your primary and long-term residence. Here are the main ways:

1. Be in Florida for at least 183 days of the calendar year.
2. Obtain and maintain a Florida driver’s license.
3. Register and insure your vehicle in Florida.
4. Register to vote in Florida.
5. Own property in Florida and claim the homestead exemption.
6. Work for or run a Florida-based business.
7. Have utility bills and bank accounts with a Florida address.
8. Don’t claim residency in another state.
9. File a declaration of domicile.
10. File a final income tax return with the old state.
11. Change passport address to Florida.
12. Move valuable household items, such as artwork or jewelry, to your Florida home.
13. Enroll your children in a local school.

Florida Declaration of Domicile

A Florida declaration of domicile is a sworn affidavit of a person’s residence that documents the intent to make Florida their permanent home.Florida Statute 222.17permits people to manifest and document their intent by filing such a declaration of domicile. Under the statute, the declaration may be filed by a person who maintains a “place of abode” in a Florida county where they intend to maintain as their permanent home.

People who maintain a second residence in another state may file a declaration of domicile to manifest their Florida residence as their primary home.

Purpose

The declaration of domicile is a voluntary filing. No statute requires an existing or new Florida resident to file a Declaration of Domicile. Failure to file the declaration does not disqualify one from being a Florida resident.

The declaration, by itself, is insufficient to establish domicile. The Florida Supreme Courtexplainedthat Florida residency requires not just an intention expressed in a Declaration, but also the fact of residency. Good faith intention to be a Florida resident must be accompanied by the overt act of residence.

The intention to move to Florida does not create Florida residency unless the debtor implements their intent through action.A declaration of domicile may be helpful to establish under the other state’s laws that the individual is a Florida resident, and therefore, should not be subject to the original state’s income taxes.

183-Day Rule for State Residency in Florida

Other states that do impose an income tax may have laws requiring a taxpayer to demonstrate an intent to live in a different state (such as Florida) for most of the calendar year. Many income tax states use a “183 Day Rule,” or a 6-month rule, to establish residency in Florida.

Under the rule, the taxing states require that a person looking to declare residency in Florida must reside in Florida for at least 183 days (in other words, one day more than six months).

Note that any time spent in the state can count as a day. For example, consider the situation of a former New York resident who has moved to Florida. The person still works occasionally in New York despite being a Florida resident. Occasionally, the person travels to New York for meetings or leisure, but returns the same day to the person’s Florida residence. The New York travel days still count as “New York days” in terms of the 183-day rule even though the person ultimately spends the night in Florida.

Not all steps are required to fully establish Florida residency. Some are more important than others.

Asset Protection Advantages for Florida Residency

Florida residents enjoy some of the best asset protection laws among any state in the country.

The most well-known protection is the Florida homestead exemption, which protects a person’s homestead from forced sale by a judgment creditor. The homestead exemption is unlimited without any dollar cap. However, there is an acreage limit: 1/2 acre if the property is inside a city and 160 acres if in an unincorporated part of a county.

Florida also provides an expansive version of tenants by entireties, which can protect all types of property owned by a married couple from creditors of a single spouse. Property that can be owned by the entireties includes, for example, bank accounts, real estate, business interests, furniture, and certain equipment.

Florida law presumes that all personal property acquired by a married couple in Florida is tenants by entireties—in most cases, it is up to the creditor to rebut the presumption of entireties ownership.

Finally, Florida statutes exempt the earnings of the head of household, or head of family. Earnings can include wages, salary, commission, or bonus. A head of family is one who provides more than 50% of the financial support for someone they have a moral or legal duty to support (usually an immediate family member).

Waiting Period for Florida Residency

There is no waiting period to establish Florida residency for asset protection purposes. As soon as you form the intent to make Florida your primary home, you are a Florida resident, and you are entitled to Florida’s asset protection benefits.

The rules are different for bankruptcy, however. Bankruptcy law imposes a two-year waiting period before a debtor may claim Florida’s exemptions in bankruptcy court.

Moving to Florida a Fraudulent Transfer?

A fraudulent transfer is when a judgment debtor transfers an asset to hinder or delay collection from a current or future creditor.

In general, moving to Florida to take advantage of Florida statutory exemptions and protections from creditors is not a fraudulent transfer. See In re Hill, 163 B.R. 591 (Bankr. N.D. Fla. 1994). However, there is at least one case where the court disallowed Florida exemptions when the person moved to Florida solely to take advantage of exemptions to frustrate creditors in another state.

See Also

Proof of Residency Letter (Affidavit of Residence)

When Is It Too Late to Move to Florida?

Many people with legal problems are interested in moving to Florida to take advantage of Florida’s homestead protection and other asset protection laws.It is never too late to move to Florida to obtain protection from civil liability. Debtors may legally become Florida residents and protect money invested in a new Florida homestead property even after a money judgment is entered.

There are no civil or criminal penalties for moving to Florida after a creditor files a lawsuit. However, a possible complication exists if another state’s court has issued an injunction against the transfer of assets.

Important Court Decision: Florida Domicile vs. Residency

Maldonaldo v. Allstate Insurance Company, 789 So. 2d 464 (2nd DCA Fla. 2001)

This decision explains the concepts of Florida domicile, Florida residency, and Florida citizenship.

See also:

• Keveloh v. Carter 699 So. 2d 285 (5^th DCA Fla. 1997)
• Minick v. Minick, 111 Fla 469 (Fla. 1933)

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About the Author

Jon Alper is nationally recognized as an expert in asset protection planning. He has over 25 years of experience in helping people protect their assets from creditors. Read more.

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