Back in the days when it was common for one spouse to work and the other to stay at home and raise the family, the state of Illinois enacted the laws of homestead. Homestead rights were originally intended to protect wives and minor children should their property-owning husband decide to sell their home from under them. Today, the main benefit of homestead rights is to prevent a sale of the home by creditors to pay the homeowner's debt.
Read More: What Is a Non-Recourse Loan?
TL;DR (Too Long; Didn't Read)
By waiving your homestead rights, you're essentially giving up the right to protect $15,000 worth of equity in your home from the claims of creditors.
What Are Homestead Rights in Illinois?
Homestead rights are designed to help you avoid becoming homeless just because you cannot pay your debt. Currently, anyone who owns and occupies a home as a primary residence can exempt $15,000 worth of real estate from a creditor's collection efforts. If both spouses appear on the title, you can pool your homestead rights and protect $30,000 value in your home. In other words, if the total equity of your home does not exceed $15,000 or $30,000 for joint property, then a creditor cannot sell your property to satisfy a court judgment, and creditors cannot get hold of it in a bankruptcy. The homestead exemption is automatic in Illinois – you don't have to do anything to claim it.
What Homestead Rights Do Not Protect
Homestead rights do not provide absolute protection against creditors. If you have more equity in your home than the exemption amount, then the creditor can still seize and sell your entire property. The creditor just has to pay you the amount of the homestead exemption from the sale proceeds before the creditor is paid. Since homestead rights are created by state law, federal law overrides them. So, you couldn't claim a homestead exemption to avoid paying a federal tax debt. Perhaps more significantly, there's no protection if you use the house as collateral for a mortgage. The bank will always be able to foreclose if you fall behind on your mortgage payments – although the first $15,000/ $30,000 of the foreclosure sale proceeds will belong to you.
Understanding the Homestead Waiver in Illinois
Whenever homestead rights exist, they act as a cloud on the title. That's because a mortgage company cannot recoup all its losses up to the full loan amount in case of foreclosure, since part of the property is exempt from creditors' claims. Few banks will lend money on this basis. So, if you're taking out a mortgage in Illinois, the bank will almost certainly require you to waive your homestead protection. The effect is simple: in foreclosure, the bank gets to keep all proceeds from the sale up to the amount of the mortgage debt plus costs. You're essentially giving up your right to keep the first $15,000 or $30,000 from the sale.
What If I'm Not on the Title?
In Illinois, the homestead exemption can be claimed only by someone who owns and occupies the home. So, if only one spouse appears on the title, then that spouse alone has the right to claim a homestead interest, even if other people live on the property. Illinois law is very clear, however, that releasing or waiving homestead rights requires the consent of both spouses. So even if you don't own the homestead property, you'll still need to sign a waiver of homestead rights to enable your spouse to mortgage the home.
Read More: How Can I Transfer a Property Title in Illinois?
- Illinois Combined Statutes: 735 ILCS 5/12-901 Homestead Rights
- FindLaw: Illinois Homestead Laws
- Legal Beagle: How Can I Transfer a Property Title in Illinois?
- Legal Beagle: How to Pull a Title on a Property in Illinois
- Legal Beagle: What Is a Non-Recourse Loan?
- Legal Beagle: How to Declare Bankruptcy in Illinois
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.