What Are The Bankruptcy Exemption Rules In Florida?

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When filing for bankruptcy in Florida, it’s crucial to understand the specific exemption rules that apply. Florida residents who have lived in the state for at least two years cannot use federal bankruptcy exemptions and must instead rely on state-specific exemptions. Understanding Florida bankruptcy laws and exemptions is essential, as they allow individuals to protect certain assets when filing for bankruptcy. These state-specific exemptions are unique compared to federal exemptions and navigating them effectively often requires legal representation.

Why Are There Florida Exemption Rules In Florida?

Congress’s intent when enacting the bankruptcy code was to balance the competing interests of the consumer receiving a resolution or reorganization of burdensome financial debt with the creditors’ interest in receiving payments for money loaned.   Congress when passing the bankruptcy code and rules balanced the principle of a debtor’s fresh start with the creditor’s right to get repaid and created a set of property exemptions. These exemptions place a limit on individuals filing bankruptcy and how much assets they can keep. The exemptions are generally separated into exemptions that affect the real property and personal property. Exemptions determine what property (such as a home, car, or retirement account) you can keep in a Chapter 7 bankruptcy, and how much you must pay to certain creditors in a Chapter 13 bankruptcy. The federal government created a set of exemptions intended to be used by all states under §522. However, they chose to include an opt-out provision for states that didn’t want to use the federal exemptions.

The Florida legislator in our state constitution chose to accept this opt-out provision meaning that bankruptcy filers in Florida are not bound by federal exemptions, but the ones chosen by state law. Most of the Florida exemptions can be found in Florida state statute chapter 222. The Florida exemptions are available in both Chapter 7 and Chapter 13 and the difference of chapter filed does not affect the usage of these protections. Unsecured debts are addressed in Chapter 7 and Chapter 13 bankruptcies, including the process of asset liquidation to pay these creditors.

Understanding Florida’s Bankruptcy Exemptions

Navigating the complexities of bankruptcy can be daunting, but understanding Florida’s bankruptcy exemptions can provide significant relief. These exemptions are laws designed to protect certain assets from creditors during a bankruptcy filing, ensuring that individuals can retain essential property and maintain a basic standard of living. Unlike many states, Florida offers some of the most generous exemptions in the country, making it a favorable state for those considering bankruptcy. By familiarizing yourself with these exemptions, you can better prepare for the bankruptcy process and safeguard your assets effectively.

Homestead Exemption in Florida

Florida has one of the countries’ most favorable homestead exemptions. Florida law provides an unlimited amount of protection on a debtor homesteads positive equity. This protection also included mobile homes and condominiums.  The only restriction on Florida’s homestead exemption is the size of the property. In a municipality, a property can receive homestead protection as long as the property lot is ½ acre or less. Outside a municipality, the property size can be up to 120 acres of contiguous land. The spouse or child of a deceased owner can claim the protection as well.

Personal Property Exemptions in Florida

Florida’s personal property exemptions cover a broad spectrum of assets, offering protection for items such as household goods, clothing, jewelry, and musical instruments. The state provides an aggregate exemption of $1,000 for all personal property, excluding vehicles.

If a debtor does not use their homestead property protection, as in the case of renters or individuals surrendering their real property, the debtors can choose a special exemption called the wildcard exemption that allows for an additional $4,000 of personal property to be exempted. This also applies to mobile home homestead. Under that exemption, you can protect all the equity in your homestead property and still choose to elect to apply the wildcard exemption to get extra protection for your personal property. This can only be done if you own the mobile home but not the land underneath.

Motor Vehicle Exemption in Florida

For many individuals, a vehicle is essential for daily life, and Florida’s motor vehicle exemption recognizes this necessity. The exemption allows individuals to protect up to $5,000 in equity in their vehicle. For joint filers, this amount can be doubled to $10,000, providing additional protection for families.

An example of this is if your car is valued at $5,000 with no loan on the property, you can choose to protect up to $5,000 of the vehicle.

Wage Exemption in Florida

Generally, deposits of wages that are traceable to a bank account my be partially or fully exempt. If the wages are attributable to the “head of family,” then they are often fully exempt. If they are not traceable to a head of family, they may be 75% exempt. It should be noted that there is disputed case law on whether someone who is not a w2 employee (in other words, self employed or 1099) can qualify for the protection.

Tenancy by the Entirety

Florida property law also provides our state’s citizens with a special protection available to married spouses that jointly own property called tenancy by the entireties. Property, either real or personal, is fully exempt as to the creditors of a single spouse. This means that creditors of only one spouse can’t attach to the property if the property is owned by both married spouses.

Retirement Accounts

Lastly, one of the other most important bankruptcy exemptions used in bankruptcy is the retirement account exemption. Most retirement accounts whether voluntary or pensions are protected in Florida up to one million dollars. One of the requirements for a retirement account to be exempted is that the account must be ERISA qualified. Pensions covered by federal tax exemptions are fully exempt in Florida. Public employee retirement benefits are protected under state law. Tax-exempt retirement accounts are protected under federal law during bankruptcy proceedings. There are many other property exemptions available in bankruptcy to filers in Florida this article only describes the most commonly and frequently used exemptions.

Conclusion

Florida’s bankruptcy exemptions offer substantial protection for individuals navigating the bankruptcy process. By understanding and utilizing these exemptions, you can maximize the protection of your assets and ensure a smoother financial recovery. Consulting with a knowledgeable bankruptcy attorney is highly recommended to navigate the complexities of the exemption laws and to take full advantage of the protections available. With the right guidance, you can achieve a fresh start and work towards a stable financial future.

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