Domicile is a key concept in common law and is referred to in all sorts of contexts, including divorces, taxes, probate, and estate planning.
The concept seems straightforward, but like most law, the details are where things get messy.
This guide covers pretty much all of what someone (outside of a lawyer) needs to know about domicile.
Understanding domicile is particularly important when dealing with probate and taxes, and you’ll walk away with that understanding, know what an affidavit of domicile is, be able to tell the difference between residence and domicile, and much more.
Domicile is your legal "forever home"
Your domicile is determined by the actions you take in an area and your intent surrounding that location
Domicile is independent from your nationality or citizenship
Domicile and residency are not the same thing— they differ by intended length of stay & depth of relationship
You can have multiple residences in multiple states, but you can only have one domicile
Legal domiciles are important for determining alimony and child support during a divorce
High earners usually domicile in the place with the lowest tax burden
There’s a lot of jargon in probate. These are just fancy words that often mean simple things.
Here are the main definitions you need to know, and if you have a more specific term you’re curious about, go check out the Atticus Glossary.
You can also click the names of any of the terms below for more information.
Let’s start with the wordier version.
(don’t worry if this feels a bit confusing, we have a more human breakdown in the next section)
Atticus’ Formal Definition of Domicile:
Domicile is the primary place that a person treats as their permanent home, or lives in and has a substantial enough connection with that the court uses it to apply certain laws and responsibilities.
And this is the official definition from the IRS:
“Domicile is the place where a person has his or her true, fixed, permanent home and principal establishment and to which, whenever he is absent, he has the intention of returning.”
Your domicile is where you pay taxes, where local laws surrounding estates and residency are sourced and applied, where your last will and testament will be fulfilled, and determines which intestacy laws you are subject to if you die without a will.
Let’s break that down:
Domicile is just the place you permanently call “home” from a tax & legal perspective.
You can think of it as the place where you always feel like you will return to. It’s where you do all the important things like vote, pay taxes, register your car, bank, etc.
It’s where your life— lives.
And if you want to change yours, it’s not enough to intend to have a different domicile. It must be proved by your actions.*
Domicile is first determined by where you live with your parents or guardian. This is known as your domicile of origin.
So if you were born in Boston and grew up in a house there, your de facto domicile is Boston.
After you reach the age of majority (come of age), you naturally acquire a domicile of choice.
A domicile of choice is simply the domicile you gravitate toward as an adult, and once a domicile is established, it is presumed to continue unless it is proven to have changed.*
The thing is, what we call home and what the law considers home can be different.
The words "residence" and "domicile", while related, aren’t the same thing.
A person may have several places of residence, but only one domicile, and it comes down to the types of actions you take somewhere and your intent surrounding it.
Your current domicile can be your residence, but you can have multiple residences.
You could have your domicile in Cleveland, Ohio, and a bona fide residence in Edinburgh, Scotland, if you intend to return eventually to Cleveland. The fact that you go and live in Scotland for a while does not automatically make Scotland your bona fide residence.
The same goes for states. Say you have a home in Boulder, Colorado that you spend a few months in each year but your “home base” is in Cleveland. You would have a residence in both Boulder and Cleveland, but Cleveland is your domicile.
And because domicile is often debated in disputes and affects laws you or a loved one are subjected to, it’s important to know how the court thinks about domicile so you can:
1. Figure out a loved one’s domicile if they are deceased
2. Know how to “prove” your own domicile
Most people don't realize that probate processes & rules vary location to location.. ohhh but do they. Choose from the dropdown below 👇 to check out the specifics of Probate processes where you live (or wherever the estate is domiciled).
Find your stateDomicile determines what laws and processes you are subjected to for death taxes, alimony/child support, inheritance taxes, and more.
It’s broadly applied, but a lot of people come to understand domicile through their experiences with probate and estate settlement after someone passes away.
When someone passes away, their location of domicile dictates what probate laws they fall under, for both interpretation of a valid will and for intestate (dying without a will).
So property and belongings pass on in different ways depending on someone’s domicile.
And if you’re serving as executor or personal representative (or plan on petitioning the court to become one), you need to petition the court that’s located in the state and county of where the person who passed away was domiciled.
So if your mother passed away in Knoxville and that’s where she has lived and voted in for decades, but you live in Buffalo, you need to work with the probate court in Knoxville, not Buffalo.
Also, here’s a useful guide if you could still use some clarity on what you’re responsible for during probate:
Death taxes are applied via a person’s domicile, so the taxes an estate owes will vary depending on jurisdiction.
For example, only a few states have estate and inheritance taxes, but if your loved one is domiciled in a state that has them, you (or the executor) will have to pay them out from the estate’s funds.
Here’s a useful map to help determine if your estate, or an estate you are settling, has estate and/or inheritance taxes.
When a question regarding domicile comes up, the court examines objective facts centered around the taxpayer’s actions/intent to maintain a permanent home.
The Court looks at:
As you can see, these are all examples of laying down roots in your community. Bouncing in and out of NYC a few times a year isn’t the same as voting in the city and commuting each day.
There is no exact criteria for determining domicile, but this is generally what the courts are looking for.
If you’re an executor or personal representative trying to figure out where a deceased loved one’s domicile is, you should just apply the same criteria as the court! 99% of the time the answer is exactly where you think it is — wherever their home base was!
But if someone had a particularly complicated living situation, then that’s why lawyers exist. Your best bet with any legal question is to ask someone with the right expertise.
Even if you want to change your domicile quickly to save on taxes or for any other reason, you cannot do so with the signing of a form. Your entire life must reflect the change. Intent is not enough, as the courts like to say.
So if you really want to change your domicile, you must prove that you are changing it by doing things like:
The aim of these actions is to provide the court with proof that you actually have changed your domicile. Courts specifically look at:
And while states don’t require you to fill out a form declaring a new domicile, some offer it as an extra step that could be useful if you expect a reason to have to prove it in the future.
As you can see, the form just involves answering a series of questions around the three criteria listed above.
Some jurisdictions also offer a certificate of domicile upon request as proof you reside in a territory. Call your local court and ask who is the best person to talk to about that if you’re curious.
Another common place to run into domicile is in the context of an affidavit of domicile.
An affidavit of domicile is just a legal document that states where someone was domiciled.
It’s created by the executor or personal representative and essentially says, “Yup. This is the deceased’s domicile and permanent residence. I swear on it.”
Executors sometimes have to make these when transferring sensitive financial assets between and out of institutions, such as bonds, stocks, and other “securities.”
Executors will also have to present their letters testamentary or letters administration, which are documents given by the court that prove the person has the right to manage someone’s estate.
Affidavits of Domicile usually include:
Most banks and institutions also require this affidavit to be notarized, which is an official witnessing of the creation of the document. And keep in mind that affidavits are effectively sworn testimony, so do your absolute best to be truthful.
There is no universally accepted domicile form. As long as it’s notarized and includes the information the bank or interested party cares about, then you should be fine.
Some banks provide their own to make it easy, but if they don’t, you can just mimic someone else’s or get your lawyer to draft one up. You can also call the bank directly and see what they say.
As an example, here’s what Wells Fargo’s affidavit of domicile form looks like:
And here are few links to major banks’ affidavit of domicile forms if you happen to bank with them:
You just need to:
They’ll give you the fancy stamp and then boom— you’ve got your notarized affidavit of domicile.
When people die, they leave behind a life that must be closed out. Don't tackle it all alone. From planning the funeral to tackling the legal & financial estate, here's an ultimate checklist of all the things an executor needs to do following the loss of a loved one.
What if you split your time between 2 states?
Let’s say you’ve lived in NYC your entire life, but you’ve always wanted to live out in the country, so three years ago you bought a house in Maine and have been splitting your time equally between the city and Maine. You vote and pay taxes in NYC but have a car and home in Maine.
Because you never really intended to leave NYC, and you still vote, pay taxes, and do other important state functions in NYC, NYC will continue to be your domicile and residence, while Maine would simply be a residence.
Can I change someone’s domicile if they are deceased?
No. You cannot change someone’s domicile after they pass.
How can I make sure my will is interpreted according to my desired domicile?
Again, you have to prove that your domicile is legitimate through the actions you take up until you pass, but many wills start with a “statement of domicile” to clearly state where they consider their domicile to be.
While the concept of domicile is simple, it has widespread implications in probate, estate settlement, civil, and common law.
If you’re an executor working through settling estate, it’s important to know where the deceased is domiciled and how that changes what you need to do. At the most basic level, the domicile will determine which probate court / clerks you need to deal with.
Here are some other resources you may find useful during this process:
