October 28, 2016
If you file for Chapter 7 or Chapter 13 bankruptcy in West Virginia, the West Virginia bankruptcy exemptions can help you keep some or all of your property (in Chapter 7) or reduce the total amount you must pay your unsecured creditors (in Chapter 13). (Learn how bankruptcy exemptions work in both Chapter 7 and Chapter 13 bankruptcy.)
Below you can learn what property the West Virginia bankruptcy exemptions protect, whether you can use the federal exemptions in West Virginia, what happens to exemptions if you are married and filing jointly, and more.
Some states allow you to choose between using the state exemptions and a list of federal bankruptcy exemptions. In West Virginia, however, you do not have this choice; you must use the West Virginia bankruptcy exemptions.
Although you can’t use the federal exemptions in West Virginia, you may use any of the federal non-bankruptcy exemptions. The federal non-bankruptcy exemptions protect property such as federal retirement accounts and veterans’ benefits. You can use both the federal non-bankruptcy exemptions and the state exemptions; you don’t have to choose between the two lists.
Unless otherwise stated, if you are married and filing a joint bankruptcy petition, you can double the amount of the West Virginia bankruptcy exemption if you both own the property. If only one spouse owns the property, then you cannot double the amount.
Below are some of the most commonly used bankruptcy exemptions. The statute citations, unless otherwise noted, are to the West Virginia Code.
In West Virginia, you can exempt up to $25,000 of equity in any real or personal property that you use as a residence. §38-10-4(a). (Get more details in The West Virginia Homestead Exemption.) This amount increases to $250,000 for a doctor with a malpractice judgment, as long as malpractice insurance was in place.
In West Virginia, you can exempt the below personal property. These exemptions are all found in §38-10-4.
In West Virginia, you can exempt up to $2,400 of equity in one vehicle, such as a car, truck, van, SUV, or motorcycle. §38-10-4(b). (Learn more about the West Virginia motor vehicle exemption.)
Implements, books, and tools of the trade up to $1,500. §38-10-4(f).
Tax exempt retirement accounts, including 401(k)s, 403(b)s, profit sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans. 11 U.S.C. § 522
IRAS and Roth IRAs to $1,283,025. (This amount is adjusted every three years. For the most recent figure, see Your Retirement Account in Bankruptcy.) 11 U.S.C. § 522(b)(3)(C)(n)
ERISA-qualified benefits and IRAs needed for your support. §38-10-4(i)(5))
Crime victims' compensation. §38-10-4(l)(1)
Social Security. §38-10-4(j)(1)
Unemployment benefits. §38-10-4(j)(1)
Public assistance. §38-10-4(j)(1)
Disability benefits. §38-10-4(j)(3)
Veteran’s benefits. 38-10-4(j)(2)
Unless otherwise, noted, the following exemptions are found in §38-10-4.
Alimony or child support that you need for support. §38-10-4(j)(4)
Wrongful death claims received by the dependent of the deceased (funds must be needed for your support). §38-10-4(k)(2)
In West Virginia, you can use the wildcard exemption to exempt any property in an amount:
This list includes some of the more commonly used West Virginia bankruptcy exemptions. There may be others. In addition, West Virginia periodically updates its exemption amounts and sometimes adds new exemptions. To find the most current laws, visit the West Virginia Code on the website of the West Virginia legislature. Be forewarned, however, that the exemptions are found in various parts of the code. To save time and ensure you’ve got the correct information, consider consulting with a West Virginia bankruptcy attorney.