If I file a transfer-on-death deed in Mississippi, do I have to reapply for my homestead exemption?

Plain-English summary

Mississippi enacted the Real Property Transfer-On-Death Act, which lets a homeowner record a deed that takes effect at death and transfers the property to a named beneficiary. The deed is revocable: the owner keeps control during life and can amend or cancel it at any time. The question Senator Michel asked the AG was whether recording such a deed should trigger a fresh homestead exemption application at the tax assessor's office.

The AG: no.

Three statutes and one case do all the work. § 91-27-9 says an individual "may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed." § 91-27-23(1)(B) is the key clause: "during a transferor's life, a transfer-on-death deed does not . . . affect an interest or right of the transferor or any other owner, including . . . homestead rights in the real property." The Mississippi Supreme Court in Hale v. State Democratic Exec. Comm., 168 So. 3d 946 (Miss. 2015), said it directly: "(A) valid homestead exemption on a property persists unless the resident takes affirmative action to cancel or alter it."

The homestead-application statute, § 27-33-31, also fits cleanly. After an applicant files a valid claim once (on or after Jan. 1, 1991), the exemption rolls forward each year automatically as long as the same person owns, uses, and occupies the same property. A new application is required only if those facts change.

A transfer-on-death deed does not change ownership while the transferor is alive. It does not change the property description. It does not change the use or occupancy. So the trigger for a new application never fires. The exemption simply continues.

What this means for you

For homeowners who file a transfer-on-death deed

Under the opinion, you are "not required to reapply for homestead exemption after filing a transfer-on-death deed." The deed does not affect your homestead rights during your life (Section 91-27-23(1)(B)), and under Section 27-33-31 a valid homestead claim already on file rolls forward each year as long as there is "no change in the property description, ownership, use or occupancy." Filing the deed is not such a change. The opinion notes a new application is required only if one of those factors does change.

For tax assessors and tax collectors

The opinion holds that a recorded transfer-on-death deed does not, by itself, require a new homestead application. Section 27-33-31 keys reapplication to a change in property description, ownership, use, or occupancy since January 1 of the preceding year, and the opinion concludes that filing the deed does not affect the owner's homestead rights during life, so the exemption continues without reapplication.

For estate-planning attorneys

The opinion answers one question: recording a transfer-on-death deed does not require the owner to reapply for the homestead exemption. It rests on the plain language of Sections 91-27-9, 91-27-23(1)(B), and 27-33-31 and the Hale rule that a homestead exemption "persists unless the resident takes affirmative action to cancel or alter it." The opinion does not address other estate-planning structures or what happens to the exemption after the transferor's death.

Common questions

Q: Does filing a transfer-on-death deed require reapplying for the homestead exemption?
A: No. The opinion holds an individual "is not required to reapply for homestead exemption after filing a transfer-on-death deed."

Q: Why doesn't filing the deed disturb the homestead exemption?
A: Because the deed does not affect the owner's present interests. Section 91-27-23(1)(B) says that "during a transferor's life, a transfer-on-death deed does not . . . affect an interest or right of the transferor or any other owner, including . . . homestead rights," and Section 27-33-31 only requires a new application when there is a change in property description, ownership, use, or occupancy.

Q: When would a new homestead application be required?
A: Under Section 27-33-31, when there has been a change in "the property description, ownership, use or occupancy since January 1 of the preceding year." The opinion's point is that recording a transfer-on-death deed is not such a change.

Q: What case did the AG rely on?
A: Hale v. State Democratic Exec. Comm., 168 So. 3d 946 (Miss. 2015), where the Mississippi Supreme Court said a "valid homestead exemption on a property persists unless the resident takes affirmative action to cancel or alter it."

Background and statutory framework

Mississippi's Real Property Transfer-On-Death Act is in Title 91, Chapter 27. Under Section 91-27-9, an individual "may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed." Section 91-27-23(1)(B) provides that, during the transferor's life, the deed does not affect the transferor's or any other owner's interests, "including . . . homestead rights in the real property."

Homestead exemptions are governed by Title 27, Chapter 33. Section 27-33-31 provides that a person with a valid homestead claim on file (filed on or after January 1, 1991) is not required to reapply each year, and is credited with the exemption "so long as such person is entitled to homestead exemption on the same property and there has been no change in the property description, ownership, use or occupancy." A new application is required only when one of those factors changes.

The opinion applies the plain-language interpretation rule from Hedgepeth and Coleman, that when statutory words are plain the court applies them as written, and the Hale rule that a homestead exemption persists absent affirmative action to cancel or alter it. Reading the statutes together, filing a transfer-on-death deed does not affect homestead rights during the owner's life, so no reapplication is required.

Citations

• Miss. Code Ann. § 91-27-9 (transfer of real property by transfer-on-death deed)
• Miss. Code Ann. § 91-27-23(1)(B) (no effect on transferor's interests, including homestead, during life)
• Miss. Code Ann. § 27-33-31 (homestead exemption continues without reapplication absent change in ownership, use, or occupancy)
• Hale v. State Democratic Exec. Comm., 168 So. 3d 946 (Miss. 2015) (homestead exemption persists absent affirmative action to cancel)
• Hedgepeth v. Johnson, 975 So. 2d 235 (Miss. 2008) (plain-language statutory interpretation)
• Coleman v. State, 947 So. 2d 878 (Miss. 2006) (plain-language statutory interpretation)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/09/J.Michel-September-6-2022-Revocable-Transfer-on-Death-Deed.pdf

Original opinion text

September 6, 2022

The Honorable J. Walter Michel
Senator, District 25
241 Richardson Road
Ridgeland, Mississippi 39157
Re:

Revocable Transfer-on-Death Deed

Dear Senator Michel:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Is an individual who files a revocable transfer-on-death deed required to reapply for homestead
exemption?
Brief Response
No, an individual is not required to reapply for homestead exemption after filing a transfer-on-death deed.
Applicable Law and Discussion
"(A) valid homestead exemption on a property persists unless the resident takes affirmative action
to cancel or alter it." Hale v. State Democratic Exec. Comm., 168 So. 3d 946, 952 (Miss. 2015).
Pursuant to the Mississippi Real Property Transfer-On-Death Act "(a)n individual may transfer
the individual's interest in real property to one or more beneficiaries effective at the transferor's
death by a transfer-on-death deed." Miss. Code Ann. § 91-27-9. "During a transferor's life, a
transfer-on-death deed does not . . . affect an interest or right of the transferor or any other owner,
including . . . homestead rights in the real property." Miss. Code Ann. § 91-27-23(1)(B).
Section 27-33-31 provides the responsibilities of the homestead applicant and states, in relevant
part:

Any person who has on file with the tax assessor a valid allowed claim for
homestead exemption filed on or after January 1, 1991, shall not be required to
annually thereafter reapply for such claim for exemption but shall be credited with
such exemption each year so long as such person is entitled to homestead exemption
on the same property and there has been no change in the property description,
ownership, use or occupancy since January 1 of the preceding year. In the event
changes have occurred in the status of the homestead in the property description,
ownership, use or occupancy since January 1 of the preceding year, and in the event
such person is still eligible for homestead exemption, he shall file a new application
and provide all the information required under this section as for the initial
application.
"When the words of a statute are plain and unambiguous, there is no room for statutory
interpretation or construction, and we apply the statute according to the meaning of those words."
Hedgepeth v. Johnson, 975 So. 2d 235, 238 (Miss. 2008) (quoting Coleman v. State, 947 So. 2d
878, 881 (Miss. 2006)). Based upon the plain language of the above cited statutes, the filing of a
transfer-on-death deed does not affect the owner/transferor's homestead rights in the real property.
Thus, the owner/transferor is not required to reapply for homestead exemption after filing a
transfer-on-death deed.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General