West Virginia Bankruptcy Exemptions

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Like all states, West Virginia has its own set of exemptions that you may use when filing for Chapter 7 or Chapter 13 bankruptcy. Exemptions determine what property (such as a home, car, instrument, retirement account, etc.) you may keep in a Chapter 7 bankruptcy, and how much you must pay to certain creditors in Chapter 13 bankruptcy. Some states allow debtors to choose between the state exemption system and a set of federal bankruptcy exemptions – but West Virginia is not one of them. In West Virginia, you must use the state exemptions below. In addition to this list, you may also use any applicable amounts in the federal nonbankruptcy exemptions.

Unless noted otherwise, if a couple is married and filing jointly in West Virginia, each spouse may claim the full amount of each exemption. This is informally called “doubling.”

To learn more about bankruptcy exemptions, including how they work, which state exemption system you should use, and special rules for the homestead exemption, see Bankruptcy Exemptions – What Can I Keep When I File for Bankruptcy? 

Special Note: West Virginia’s Bankruptcy-Only Exemption System

West Virginia, along with seven other states, has an exemption scheme that applies only in bankruptcy (which means you can’t use them against judgment creditors that try to take your property in other situations). Several courts have ruled that bankruptcy-only exemption schemes are unconstitutional. Although others have determined the opposite – that debtors may use these exemptions.

Although the majority of bankruptcy courts allow debtors to use bankruptcy-only exemption schemes, you may wish to consult with an attorney to determine what exemptions are permitted in your local bankruptcy court. 

West Virginia Bankruptcy Exemptions

Unless otherwise noted, all law references are to the West Virginia Code.

Homestead

38-10-4 - Real or personal property used as a residence up to $25,000. Unused portion may be applied to any other property.

Personal Property

38-10-4 - Motor vehicle up to $2,400; clothing, household goods, furnishings, appliances, books, musical instruments, animals and crops up to $400 per item and $8,000 total; jewelry up to $1,000; health aids; lost earnings payments needed for support; personal injury recoveries up to $15,000; prepaid higher education trust fund and savings plan payments; and wrongful death recoveries for a person you depended upon needed for support.

38-10-4 - Burial plot up to $25,000, in lieu of homestead.

Wages

38-5A-3 - Minimum of 30 times the federal hourly minimum wage per week. Judge may approve more for low income debtor.

Pensions

11 U.S.C. § 522 - 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(b)(3)(C)(n) - IRAS and Roth IRAs to $1,171,150.

5-10-46 - Public employees.

18-7A-30 - Teachers.

38-10-4 - ERISA-qualified benefits and IRAs needed for support.

Public Benefits

9-5-1 - General assistance; aid to blind, aged, and disabled.

38-10-4 - Crime victims' compensation; unemployment compensation; Social Security; and Veterans' benefits.

23-4-18 - Workers' compensation.

Tools of Trade

38-10-4 - Tools, books and implements of trade up to $1,500.

Alimony and Child Support

38-10-4 - Alimony and child support needed for support.

Insurance

33-6-28 - Group life insurance policy and proceeds.

33-23-21 - Fraternal benefit society benefits.

38-10-4 - Unmatured life insurance contract (except for credit life insurance contract); health or disability benefits; life insurance dividends, interest, loan, cash, or surrender value for person you depended; and unmatured life insurance contracts' accrued loan value, interest, or dividend up to $8,000 as long as the debtor owns the contract and the insured is either the debtor or a person the debtor is dependant upon.

Wildcard

38-10-4(e) - $800 plus unused portion of homestead or burial exemption, of any property.

Other

 Add any applicable Federal Nonbankruptcy Exemptions.

Confirming Exemptions

This list includes the majority of bankruptcy exemptions available in West Virginia. However, it may not include all exemptions, and states often create exceptions to specific exemptions. In addition, West Virginia may have changed the amounts since this list was last updated in June of 2011. Consider cross-checking this list with www.legalconsumer.com, which updates the state exemption amounts regularly, or check with your local bankruptcy court. 

 

by: , J.D.

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