WARNING Regarding Certain Jointly-Held Property
Step 1. Identify the "the applicable state"
The first step in determining what exemptions are available to a debtor is to identify the state whose
law “is applicable on the date of the filing of the petition.” 11 USC § 522(b)(1)(3)(A). (There will be
either only one such state or none.) There are three rules to identify that state. The debtor must apply
each of them in order until an applicable state is identified or none is determined to exist.
First, if there is a state "in which the debtor's domicile has been located for the 730 days immediately
preceding the [anticipated] date of the filing of the petition," that is the state whose law is applicable.
11 USC § 522(b)(3)(A). (Note that the rule requires the debtor to have been domiciled in that state for
every one of those 730 days.) (“Days” means calendar days and the counting begins on the calendar
day before the day the petition was filed. In re Dufva, 2008 WL 2065198 (Bankr.W.D.Mo.2008).) If
such a "730-day state" exists, select it in column 1 of the table on this site as "the applicable state."
If there is no 730-day state, determine next whether there is a state "in which the debtor's domicile
was located for 180 days immediately preceding the 730-day period or for a longer portion of such
180-day period than in any other place [state]." 11 USC § 522(b)(3)(A). If such a "180-day state"
exists, select it in column 1 of the table as the applicable state.
If there is no 180-day state, (which will occur only if debtor was not domiciled in any state for any
amount of time during the 180 days prior to the 730 days), then there is no state whose law is
applicable on the date of the filing of the petition. In that case, debtor will use the federal exemptions.
Basis for this rule. Use the first row of the table.
When you have completed this step, you either will have selected an applicable state from column 1
or you will have concluded that the debtor must use the federal exemptions.
Step 2. Determine which set(s) (federal, state, or either) of exemptions the applicable state
allows the debtor to use
Next, you must determine which set(s) of exemptions the applicable state permits the debtor to use
based on the debtor's residency with respect to that state on the date of filing. The applicable state
will allow the debtor one of these three scenarios:
1. Debtor may use only the applicable state's exemptions. Example: A debtor for whom
California is the applicable state regardless of whether the debtor is a resident of California on
the date of filing.
Debtors who use a state’s exemptions may also use the federal non-bankruptcy exemptions,
the protections for jointly-held property in 11 § 522(b)(3)(B), and the exemptions in 11 USC §
2. Debtor may use only the federal bankruptcy exemptions. Example: A debtor for whom
Arizona is the applicable state and who is not a resident of Arizona on the date of filing.
Debtors who use the federal exemptions may not use the federal non-bankruptcy exemptions or
the protections for jointly-held property in 11 USC § 522(b)(3)(B).
3. Debtor may use either the applicable state’s exemptions or the federal bankruptcy Some states (Connecticut, for example) impose no residency requirements for use of either the state
exemptions. Example: A debtor for whom Connecticut is the applicable state regardless of
whether debtor is a resident of Connecticut on the date of filing.
or federal exemptions (as shown in columns 2 and 4 of the chart on this site). If such a state is the
applicable state that you have selected in column 1 of the chart, the debtor may use either its state
exemptions or the federal ones regardless of whether the debtor is a resident of that state on the date
of filing. Other states impose residency requirements for use of either or both the state's exemptions
and the federal exemptions. If such a state is the applicable state that you have selected in column 1
of the chart, you must determine whether the debtor is a resident of that state on the date of filing and
then use columns 2 and 4 to see which exemptions can be used.
In the vast majority of cases, the debtor will be either a domiciliary and resident of the applicable state
on the filing date because the 730-day rule was used to select the applicable state or the debtor will
be neither a domiciliary nor a resident of the applicable state on the filing date because the 180-day
rule was used. In some cases, however, the debtor may be a domiciliary but not a resident of the
applicable state or vice versa. You will then have to look closely at the residency status stated in
columns 2 and 4 of the chart to determine the available exemptions. For example, if debtor is a
resident but not a domiciliary of Delaware on the date of filing, debtor must use the federal exemptions.
The links to the entries in the columns provide you with statutory and case law that support the
conclusions stated in the entries.
Step 3. If the exemptions of the applicable state are available, determine whether there are
any territorial restrictions on them.
If column 2 shows that the applicable state's exemptions are available to the debtor, use column 3 of
the chart to determine whether that state denies use of some or all of its exemptions on property
outside its boundary. If there is such a limitation, the debtor may wish to use the federal exemptions if
column 4 shows they are available. If they are not, a nonresident debtor may wish to argue that some
or all of the federal exemption(s) can be substituted for some or all of the state exemption(s) under
the saving provision. This is covered in the notes linked to column 4 of the chart for states where this
possibility may arise.
Examples of application of the above instructions
Example 1. Debtor will be domiciled in Ohio for more than 730 days immediately preceding, and on,
the date of filing. Ohio is the applicable state under the 730-day rule and columns 2 and 4 show that
Ohio permits its domiciliaries to use only the Ohio exemptions, not the federal. Therefore, debtor must
use Ohio's exemptions.
Example 2. Debtor has resided in New Mexico for more than 2½ years (730 + 180 days) but has no
intention of remaining there. His job requires him to move from state to state. The default rule applies
(row 1 of chart) because debtor had no domicile during the 730-day and 180-day periods and debtor
must use the federal exemptions.
Example 3. Debtor has been domiciled in New York for more than 2½ years (730 + 180 days) and will
be moving permanently to another state in a couple of months. If debtor files after he moves, New
York is the applicable state under the 180-day rule. Debtor must claim the federal exemptions
because New York has opted out of the federal exemptions only for domiciliaries and debtor will not be
a domiciliary of New York on the date of filing bankruptcy.
Example 4. Prior to the anticipated date of filing, debtor will not have been domiciled continuously in
any one state for 730 days or more and was domiciled in some other state for most of the 180 days
preceding the 730. Columns 2 and 4 of the chart show that, if the 180-day state is Florida, debtor may
use only the federal exemptions. If the 180-day state is Pennsylvania, debtor may use either the state
exemptions or federal because Pennsylvania has no residency requirements. If the 180-day state is
Texas, both federal and state exemptions are available and debtor could use Texas’ state exemptions.
But Texas allows use of its homestead exemption only on property located in Texas. So, debtor may
want to use the federal exemptions.
From these examples it can be seen that, in some cases, it may be important to file before debtor has
been domiciled in a state for 730 days because debtor may then have access to the more
advantageous exemptions of some 180-day state or to the federal exemptions.