Homestead Fla. Const. Art X §4(a)(1) Fla. Stat. Ann. Secs 222.01 & 222.02; Fla. Stat. Ann. §222.05
Limits: ½ acre in city limits or 160 acres unincorporated county. Check the county property appraiser’s website. They differ from each other but will indicate things like:
Orange County: Municipality: “Un-incorporated” or City Name Seminole County: Tax District: “County” or City Name Volusia: Tax District: “Unincorporated” or City Name Brevard: Taxing District: “Unincorp” or City Name
If in city limits and over ½ acre look to when the property was acquired. It can be grandfathered in if it was unincorporated at the time of acquisition. In Re Burns 395 B.R. 756 (KSJ 2008)
Trailers/Temp structures likely ok but can be fact-specific: In Re Gamboa USCA 11th 18-14367 (2019)(unpublished)
Children/dependents live there but debtor doesn’t: In Re McFarlane 325 B.R. 908 (ALP 2005)
“…the court found that the Constitution does not require the owner claiming homestead exemption to actually reside in the residence, it was sufficient if the owners’ family resided on the property. Furthermore, in order support a claim of abandonment, it must be shown that the property in question was abandoned by both the owner as well as the owner’s family. In the case of In re Estate of Melisi, 440 So.2d 584, 585 (Fla. 4th DCA 1983), the court noted that in a case of a divorce where a party may be precluded from residing on the homestead with the family of which the owner may be head of household, the character of the property remains homestead and thereby, not abandoned.”
11 USC 522(o)
(o) For purposes of subsection (b)(3)(A), and notwithstanding subsection (a), the value of an interest in-
(1) real or personal property that the debtor or a dependent of the debtor uses as a residence;
(2) a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence;
(3) a burial plot for the debtor or a dependent of the debtor; or
(4) real or personal property that the debtor or a dependent of the debtor claims as a homestead;
shall be reduced to the extent that such value is attributable to any portion of any property that the debtor disposed of in the 10-year period ending on the date of the filing of the petition with the intent to hinder, delay, or defraud a creditor and that the debtor could not exempt, or that portion that the debtor could not exempt, under subsection (b), if on such date the debtor had held the property so disposed of.
In Re Osejo 447B.R.352 (JKO 2011) “The Debtor did not break down on the stand a la Perry Mason at the February 17, 2011 evidentiary hearing and confess her intent to hinder, delay, or defraud creditors. The Trustee did not introduce a serendipitous Facebook posting where the Debtor announced nefarious aims. The Debtor did, however, fail to disclose in her July 24, 2010 sworn filings that she had in April sold non-exempt securities which yielded $42,309.13. She testified at the February 17, 2011 evidentiary hearing that the proceeds of that previously undisclosed April 29th sale were used to improve the homestead she acquired shortly before the bankruptcy filing. She did not amend her Statement of Financial Affairs to disclose the April 29th sale until the day of her second 341 Meeting of Creditors, after the Trustee had hired counsel to look into the matter. How the Debtor managed to forget about a $42,309.13 securities sale three months before her bankruptcy filing is interesting. It is especially interesting in light of the fact that she used that money to improve a homestead which she claimed as exempt on Schedule C.”
11 USC 522(p) Limits homestead exemption to $189,050 (subject to adjustment every 3 years) in homes purchased within 1,215 (1 year, 4 months) before filing.
In Re Rasmussen 349 B.R. 747 (MGW 2006) Exemptions are stackable for joint debtors and post-purchase appreciation does not apply. “Passive appreciation in a homestead was not the target of the legislation; rather, the active acquisition of equity in an exempt homestead shortly before filing for bankruptcy was the focus of the new provision.”
In Re Buonopane 359 B.R. 346 (MGW 2007) 522(p) does not limit TbyE on homestead.
Immigration Status: In Re DeBauer 6:20-bk-04228-KSJ (2021); In Re Oyola 571 B.R. 874 (MGW 2017) If the Debtor is not a Permanent Resident make sure there is another “hook”.
“Ordinarily, a debtor who is not a U.S. citizen cannot legally formulate the intent to reside here permanently for homestead purposes unless the debtor is a permanent resident as of the petition date. Here, the Debtor was not a permanent resident as of the petition date. So she cannot legally intend to reside here permanently. But the Debtor’s adult daughter, who is living in the Debtor’s house, was a permanent resident as of the petition date. And her minor granddaughter, who is also living in her house, was a U.S. citizen. Because the Florida Constitution permits an owner to claim property as homestead if the owner’s family is living on the property, the Debtor is entitled to claim the homestead exemption.”
Multiple contiguous parcels: Very fact-specific and might can be done, but has limits. In Re Fowler 6:14-bk-02625-KSJ (2016) “The Debtor is not entitled to exempt the Second Parcel under the Florida constitutional homestead exemption. The Second Parcel has its own address, house, and driveway and is not used by the Debtor as her residence. So, even though it is contiguous to the Debtor’s home, the two parcels are not used in connection with one another.”
Homestead v. TbyE: In Re Fitzpatrick 521 B.R. 698 (KSJ 2014) “A debtor who does not affirmatively claim a homestead exemption but jointly owns a home with a non-debtor may claim the wildcard exemption under Florida Statute § 222.25(4) as long as the Chapter 7 trustee is not prevented from effectively administering the home. Here, the Debtor claimed the wildcard exemption in lieu of claiming a homestead exemption. The Chapter 7 Trustee objected because the Debtor owns her home with her non-debtor husband. Because the Debtor’s husband formally has waived his right to claim a homestead exemption, the Debtor has not limited the Trustee’s ability to administer the home in this bankruptcy case. The Court therefore overrules the Trustee’s objection and concludes that the Debtor may use the wildcard exemption.”
In re Fitzpatrick, 521 B.R. 698 (Bankr. M.D. Fla. 2014)
In Re Aranda 08-26059 (PGH 2010) Aranda seems to say TbyE can be inferred and implied with real property in Florida, even with multiple title changes. Debtors had a property that was transferred between them and corporate entities, once came back to them as Tenants in Common, but adjusted later to TbyE, court said that was ok. Court did not allow Mr. Aranda to claim TbyE on a bank account, however, that had just him on it originally and wife was added later.
In Re Shahegh 12-25260-BKC-AJC (2013) Debtors moved to Florida from Virginia. Wife filed and claimed TbyE on the car. Car was in just wife’s name in Virginia, but was put in both names when it was titled in Florida. Debtor argued UNITY OF TIME started when they came to Florida. Court did not agree.
Mobile Homes on Leased Grounds: This exemption is only statutory, not constitutional. This means it does not limit use of the Wildcard.
Wages Fla. Stat. Ann §222.11(2)(a)(b)(c); 15 U.S.C. §1673 Generally, it’s 100% if dependents; 75% if no dependents. Of course, there are limits. In Re McDermott 6:09-bk-10942-KSJ (2010)
Debtor who owns and runs his own business, without arms-length employment agreement, and who has almost complete control and discretion over timing and amount of his own compensation, cannot rely on Florida exemption for earnings of head of household in order to exempt whatever distributions he chooses to obtain from business.
Retirement Fla. Stat. Ann. §222.21(2)
Disability Income Benefits Fla Stat. Ann. §222.18
Social Security Fla. Stat. Ann. §222.201; 11 USC 522(d)(10)(a); 42 USC 407
Special Savings Accounts Fla. Stat. Ann. §222.22 HSA’s & 529 Plans, for example.
Tenancy by the Entireties 11 U.S.C. 522(b)(3)(B): Florida covers almost everything except titled vehicles with “or” between the names. (FS 319.235) In Re Daniels 309 B.R. 54 (2004) the court found that a motor vehicle titled in the name of a debtor “or” his non-debtor spouse was not owned as tenants by the entireties, regardless of their intent, because of the statute above describing how to create interests in vehicles in Florida. 16 The Daniels court concluded that Beal Bank did not override F.S. §319.22. Therefore, in order for a vehicle to qualify as TBE, it is necessary to state the names of both spouses with the conjunctive “and.”
TbyE can protect otherwise liquid assets in a joint case to the extent there are no joint unsecured creditors. In Re Qamar 3:16-bk-01490-JAF (2017)
The United States Bankruptcy Court for the Middle District of Florida adopts the reasoning espoused by the United States Bankruptcy Appellate Panel for the Eighth Circuit in Peet and concludes that the filing of a joint petition does not defeat the unities of tenancy by the entirety. However, joint creditors of both spouses may reach tenancy-by-the-entirety property located within Florida, as provided-for by Florida law. 11 U.S.C.S. § 522(b)(3)(B).
Watch for out of state ownership/origination issues. Not all state’s TbyE’s are the same and a few states don’t have TbyE at all. Discussion in In Re Yerian 6:15-ap-00064-KSJ (2018)
Examples: None at all: Ohio (unless it’s a grandfathered real estate deed from the early 70’s or earlier), Arizona, Kansas, Washington (there are probably others)
Indiana: real estate only
North Carolina: only Real Estate and Mobile Homes
Some versions of it: PA, MI, AK, MD, DC, TN, VA
Illinois: only marital residence
Earned Income Credit Fla. Stat. Ann. 222.25(3) Limited to Earned income credit and may not apply to any other elements that comprise a debtor’s tax refund, specifically the separate Child Tax Credit.
In Re Dupree 619 B.R. 516 (Bankr. M.D. Fla. 2020); In re Baker 9:14-bk-13900-FMD, 2015 WL 4349212 (Bankr. M.D. Fla. 2015); In re Matthews, 380 B.R. 602 (Bankr. M.D. Fla 2007)
Wildcard Fla. Stat. Ann. §222.25(4)
Life Insurance Proceeds Fla. Stat. Ann. §222.13 & §222.14
Are exempt for the Insured, not the beneficiary. Annuities are exempt for beneficiary unless the asset was effected for the benefit of a creditor.
In Re Lowery 272 B.R. 317 (JAF 2001) “The Court holds that § 222.14 only exempts the cash surrender value of life insurance policies of which the debtor is both the owner and the insured. The use of “or” to link “garnishment” and “creditors of the person whose life is insured” does not negate the statute’s plain meaning and the requirement that the owner and the insured be the same person.”
Property Listed in 11 USC §522(d)(10) Fla. Stat. Ann. 222.201(1)
(d)(10) (A) a social security benefit, unemployment compensation, or a local public assistance benefit;
(B) A veteran’s benefit;
(C) a disability, illness, or unemployment benefit;
(D) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless—
(i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose;
(ii) such payment is on account of age or length of service; and
(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986.
FEMA Benefits 44 C.F.R.§206.110(g)
Exemption from garnishment. All assistance provided under this subpart is exempt from garnishment, seizure, encumbrance, levy, execution, pledge, attachment, release or waiver. Recipients of rights under this provision may not reassign or transfer the rights. These exemptions do not apply to FEMA recovering assistance fraudulently obtained or misapplied.
Student Loan, Grant or Work Assistance Proceeds 20 U.S.C. 1095a(d)
(d)NO ATTACHMENT OF STUDENT ASSISTANCE
Except as authorized in this section, notwithstanding any other provision of Federal or State law, no grant, loan, or work assistance awarded under this subchapter, or property traceable to such assistance, shall be subject to garnishment or attachment in order to satisfy any debt owed by the student awarded such assistance, other than a debt owed to the Secretary and arising under this subchapter.