December 31, 2018
Like all states, Florida has a set of exemptions you can use to protect property—such as a home, car, or retirement account—when filing for Chapter 7 or Chapter 13 bankruptcy. What will happen to nonexempt property will depend on the bankruptcy chapter you file.
If you’d like to learn more about each chapter type, try reading about the differences between Chapter 7 and 13. Once you’re ready to file, go to How Bankruptcy Works in Florida for great filing tips.
Although the bankruptcy code has a list of federal bankruptcy exemptions, states decide whether their residents can use them. Florida, like many other states, doesn't allow use of the federal bankruptcy exemptions. You’ll have to use the Florida exemptions in bankruptcy.
If you own a home, you’ll likely find Florida’s bankruptcy exemptions quite favorable. You can exempt all of the equity in a residential property that meets Florida’s guidelines (more below). Also, Florida has unlimited exemptions for annuities and the cash surrender value of a life insurance policy.
You must be a Florida resident for at least 730 days before filing the bankruptcy petition. If you weren’t living in any one state during the two years before filing for bankruptcy, you'd use the exemptions of the state you lived in for most of the 180 days before the two-year period that immediately preceded your filing.
Florida has one of the most generous homestead exemptions in the country. You can exempt an unlimited amount of equity in your home or other property covered by the homestead exemption as long as the property isn’t larger than half an acre in a municipality or 160 acres elsewhere.
Before claiming the homestead exemption in Florida, you must have owned the property for at least 1,215 days before the bankruptcy filing. If you can't meet this requirement, your homestead exemption is limited by federal law. (Fla. Stat. Ann. § 222.01-02)
The following categories of personal property (anything other than real estate) are exempt:
You can exempt up to $1,000 in motor vehicle equity. This amount increases if you’re married and filing jointly.
Wages of a head of the family are entirely exempt up to $750 per week, or the greater of 75% or 30 times the federal minimum wage. This applies to paid and unpaid wages, as well as wages deposited in a bank account during the last six months. (Fla. Stat. Ann. § 222.11.) Earnings of a person other than the head of the family are protected as follows: 75% or 30 times the federal minimum wage, whichever is greater.
Federal government employees’ pension payments needed for support and were received up to three months before the bankruptcy are also exempt. (Fla. Stat. Ann. § 222.21.)
A debtor can claim up to $4,000 of personal property if the debtor doesn’t use the homestead exemption. (Fla. Stat. Ann. § 222.25.)
The following types of pensions and retirement funds are exempt in Florida:
You can exempt the following public benefits:
Alimony and child support, to the extent reasonably necessary for the support of the debtor (the bankruptcy filer) and any dependent of the debtor, are exempt. (Fla. Stat. Ann. § 222.201.)
You can exempt the following:
Damages (money) for an employee’s injuries or death that occurred while working in a hazardous occupation are exempt. (Fla. Stat. Ann. § 769.05.) However, any other proceeds received from a lawsuit or pending legal claim belongs to the bankruptcy estate, and you’ll have to use another exemption, such as the wildcard exemption, to protect the recovery.
Also, if you haven’t resolved the lawsuit when you file for bankruptcy, the bankruptcy trustee can decide whether to retain an attorney and proceed on your behalf. The trustee will then decide whether to settle the case or proceed to trial.
Example. In your paperwork, you disclose the minor rear-end accident you were involved in six months before. Even though you weren’t at fault, you didn’t bother pursuing it because your injuries resolved quickly. The bankruptcy trustee has the option of pursuing the claim on your behalf against the driver at fault.
Above are some of the most commonly used exemptions in Florida. There could be other exemptions that apply to your situation. You’ll want to ensure that you’re declaring all of the exemptions you’re entitled to by reviewing the Florida Statutes, the Florida Constitution, and the Bankruptcy Code. Or, talk to a local bankruptcy attorney.
This overview cannot provide all of the information you’ll need to file a bankruptcy case. For more detailed information, consider buying a self-help book such as How to File Chapter 7 Bankruptcy by Attorney Cara O’Neill and Albin Renauer J.D.