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Massachusetts Bankruptcy Exemptions
Massachusetts Offers a Choice of Federal or State Exemptions
Massachusetts law allows you
to use the exemptions found in the U.S. bankruptcy code (11
U.S.C. § 522(d)) or the exemptions provided under Massachusetts law. However, you cannot mix and match exemptions from the
federal bankruptcy code and state law. You must choose one system or
the other.
However, if you use the state law exemptions, there are a few U.S. 'non-bankruptcy'
exemptions (that is, exemptions that exist outside of federal bankruptcy
code) that you can use in addition to your state law exemptions. The
four most significant non-bankruptcy exemptions are for:
- Wages (a general cap on what percentage of your wages can be garnished)
- Social Security benefits
- Civil Service benefits, and
- Veterans Benefits
Other non-bankruptcy exemptions mostly deal with
various benefits to government and military personnel, with a few odd
laws regarding specially regulated labor markets such as railroad workers,
merchant sailors, and longshoremen.
NOTE: Federal Exemption amounts listed below reflect the April 1, 2019 adjustment for inflation every three years, and therefore do not match the figures shown in the federal exemption statutes. Click here for the April 1, 2019 inflation adjustments to Federal bankruptcy exemption amounts, published in the Federal Register.
Special Notes regarding Massachusetts exemptions:
Massachusetts exemption amounts increased substantially as of April 2011. State statute links to official websites may not reflect the latest change. For a good overview of the changes, see: http://bankruptcyma.blogspot.com/2011/01/new-massachusetts-property-exemptions.html
Can you double exemptions for joint filers? (General principles)
If you are married and filing together, you and your spouse must use the same law; one cannot use federal law while the other uses state law. However, the exemption law chosen applies separately to each spouse. Thus, it is generally possible to double the amount of state law exemptions, Cheeseman v. Nachman, 656 F.2d 60 (4th Cir. 1981) (married couple filing a joint petition was entitled to double the Virginia homestead exemption), unless state law (e.g. California) specifically prohibits a couple from doubling certain exemptions. See First National Bank v. Norris, 701 F.2d 902 (11th Cir. 1984)(Alabama); Granger v. Watson, 754 F.2d 1490 (9th Cir. 1985)(California).
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Massachusetts Homestead |
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Massachusetts Homestead Exemption
Almost every state provides protection for equity in the family
home, and many states have increased the amount of protection in recent
years. Seven states offer unlimited protection. Most states are not as generous.
For special rules about filing for declarations of homestead in Massachusets see the links below
New Federal Residency Requirement
Under the new bankruptcy law, you must be have lived in the state for
at least 40 months (three years and four months) before you can claim
any homestead protection greater than $160,375. (If your state's exemption offers
less than this amount, the law is irrelevant to you.) The law is poorly
worded but seems to say that if you move from one home to another in
the same state, you can claim that state's homestead protection.
IF you are moving to another state, OR you moved to Massachusetts within in the last two years, click here.
Special notes about Massachusetts Homestead Exemptions: For special rules about filing for declarations of homestead in Massachusets see the links below
Federal Exemptions
- Real property, including co-op or mobile home, or burial plot to $25,150; unused portion of homestead to $12,575 may be applied to any property
11 U.S.C. § 522 (d)(1), (d)(5)
(retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986)
(For assets in individual retirement accounts described in section 408 or 408A of the Internal Revenue Code of 1986, other than a simplified employee pension under section 408(k) of such Code or a simple retirement account under section 408(p) of such Code)
(Earned Income Tax Credit is federal no local, so not exempt)
Massachusetts Exemptions
- MA Exemptions
- Automatic homestead $125,000; "Declared homestead" to $500,000 for property you occupy or intend to occupy (including mobile home); (co-owners may not double) (special rules if over 62 or disabled, may double to 1,000,00).
Mass. Gen. Laws ch. 188, § 1
Mass. Gen. Laws ch. 188, § 2
Mass. Gen. Laws ch. 188, § 5
In re Peirce, 467 B.R. 260 (Bankr.D.Minn. 2012)
(declared homestead available to owners of living trust)
- Property held as tenancy by the entirety may be exempt against debt for non-necessity owed by only one spouse.
Mass. Gen. Laws ch. 209, § 1
- Special rules for elderly and disabled.
Mass. Gen. Laws ch. 188, § 2
- Spouse or children of deceased owner may claim homestead exemption
Mass. Gen. Laws ch. 188, § 7
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Tenancy by Entirety Exemption
Tenancy by the Entirety (TBE) is a form of property ownership, based
on traditional English common law, that is still recognized in about
1/2 of states and the most common form of martial property ownership
in many of them.
It protects property that is jointly owned by a married couple as
an "entirety" -- which is to say, as a single marital entity,
not as individuals.
Tenancy by the Entirety (TBE) was originally conceived as a debt shield
-- a way of protecting wives and children from being left homeless
and penniless as a result of the debts of a husband. Under the English
common law TBE doctrine, a husband could not sell property owned by
"the entirety", or give it away, or pledge it as security for
a loan without the consent of his wife.
Today, 25 states still recognize some form of tenancy by the entirety,
but they differ on the extent to which the property is exempt.
Massachusetts Exemptions
- Property coowned by spouses as TBE and used as the principal residence of the nondebtor spouse is exempt unless the claim is based upon necessities provided to either spouse or dependent.
Mass. Gen. Laws ch. 209, § 1
- Property held as tenancy by the entirety may be exempt against debt for non-necessity owed by only one spouse.
Mass. Gen. Laws ch. 209, § 1
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Massachusetts Insurance exemptions
Virtually all states protect life insurance proceeds in some manner
or another. Some restrict it to proceeds paid to a dependent. Many
states also protect the cash-value or loan-value of insurance policies.
If a substantial amount of your assets are in life insurance, you
may want to consult a professional to determine the extent to which
those policies are exempt. The website AssetProtectionBook.com does
particularly thorough job of covering Massachusetts insurance
exemptions.
Massachusetts Exemptions
- Disability benefits to $400 per week
Mass. Gen. Laws ch. 175, § 110A
Mass. Gen. Laws ch. 175, § 36B
- Fraternal benefit society benefits
Mass. Gen. Laws ch. 176, § 22
- Group annuity policy or proceeds
Mass. Gen. Laws ch. 175, § 132C
- Group life insurance policy
Mass. Gen. Laws ch. 175, § 135
- Life insurance or annuity contract proceeds if clause prohibits proceeds from being used to pay beneficiary's creditors
Mass. Gen. Laws ch. 175, § 119A
- Life insurance policy if beneficiary is married woman
Mass. Gen. Laws ch. 175, § 126
- Life or endowment policy, proceeds, or cash value
Mass. Gen. Laws ch. 175, § 125
- Medical malpractice self-insurance
Mass. Gen. Laws ch. 175F, § 15
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Miscellaneous other exemptions for Massachusetts
This category covers items like partnership property, alimony & support
payments.
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Massachusetts Pensions & Retirement Savings Exemptions
The new federal bankruptcy law now automatically exempts a virtually
all tax-exempt pensions and retirement savings accounts from bankruptcy,
even if you are using state law exemptions. 11 U.S.C. § 522(b)(3)(C).
(See Help Topic: Special Rules For Retirement Accounts.)
Special
Rules for Retirement Accounts
Under a new provision of the bankruptcy law, enacted in October 2005,
virtually all types of pension and retirement accounts recognized by
the IRS are completely exempt regardless of what state you live in.
This provision exempts"retirement funds to the
extent that those funds are in a fund or account that is exempt from
taxation under Sections 401, 403, 408, 408A, 414, 457, or 501(a) of
the Internal Revenue Code."
This list covers 401(k)s, 403(b)s, profit-sharing and money purchase
plans, IRAs (including SEP and SIMPLE plans), as well as defined-benefit
plans.
The exemption applies whether you rely on the list of federal bankruptcy
exemptions (11 U.S.C. 522(d)(12)) or the exemption laws of your own
state (See 11 U.S.C. 522(b)(3)(C)). Section 522(b)(4) spells out the
specific requirements for qualifying under these provisions.
These exemptions are unlimited, except for Roth and traditional IRAs,
which are capped at an aggregate IRA account value of $1 million
per individual (adjusted every three years for inflation). (See 11
U.S.C. 522(n))
SEP and SIMPLE IRAs, along with all other types of non-IRA retirement
accounts such as 401(k)s and 403(b)s, are completely exempt.
More Info
For more details, see an
excellent summary of how retirement accounts are treated under
the new bankruptcy law from the August 2005 issue of the Journal
of Financial Planning.
References to the Internal Revenue Code
The new bankruptcy law exemption for retirement accounts includes
all funds "exempt from taxation under section 401, 403, 408, 408A, 414, 457,
or 501(a) of
the Internal Revenue Code of 1986."
Those sections cover:
- 401 (a
qualified pension, profit-sharing and stock bonus plan created
under a trust established by an employer for the exclusive benefit
of employees or beneficiaries)
- 403 (qualified
annuity plans that are established by an employer for an employee
under IRC 404(a)(2) or 501(c)(3))
- 408 (IRAs)
- 408A (Roth
IRAs)
- 414 (other
retirement plan for controlled groups of employees such as churches,
partnerships, proprietorships, and governments)
- 457 (eligible
deferred compensation plans) or
- 501(a) (retirement
plans established and maintained by tax-exempt organizations, e.g.
churches, nonprofit organizations)
Special 'exclusion' of education accounts
Under the new bankruptcy law, education savings accounts or education
IRAs created under sections 529 or 530 of the Internal Revenue Code
are 'excluded' from the bankruptcy estate (not quite the same as 'exempt'
but with the same result).
See, 11 U.S.C. 541(b)(6), (529 Education Tuition Plans) and 11 U.S.C.
541(b)(5) (530 Coverdell IRAS)
NOTE: Even though these education accounts are excluded from the bankruptcy
estate, you still must list them on your forms (See section (11 U.S.C.
521(c).)
Also excluded are:
- benefits governed by ERISA (Click here for government info
on ERISA and pension.)
- 414(d)(governmental retirement plans),
- IRC 457 (deferred compensation)
- 403(b)( tax deferred annuity plan including church plans, etc)
See 11 U.S.C. 541(b)(7)
The law protects up to $1,283,025 of any pension or retirement fund that qualifies for
special tax treatment under Internal Revenue Code sections 401,
402, 403, 408, 408A, 414, 457, or 501(a).
Federal Exemptions
- All types of retirement funds and accounts that tax-exempt under IRC section 401, 403, 408, 408A, 414, 457, or 501(a) ; IRAs & Roth IRAs limited to $1,362,800 (excluding rollover contributions); limitation can be overidden by judge.
11 U.S.C. § 522 (d)(12)
11 U.S.C. § 522 (n)
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Massachusetts Personal Property Exemptions
This category covers your car, your non-retirement bank accounts,
and most of your other personal possessions, other than your house.
States vary widely on how generous they are in this area. Some exemptions
may be for any combination of property up to an aggregate amount. Other
exemptions apply only to specific items, such as jewelry.
Remember that an exemption will not protect your car from being repossessed
by the holder of the car loan you used to purchase the vehicle
if you pledged the vehicle as security for the loan. To keep the car,
you will have to pursue other options such as 'redemption' or 'reaffirmation.'
See the help topics and How
to File for Chapter 7 Bankruptcy for more
on this.
Federal Exemptions
- Animals, crops, clothing, appliances, books, furnishings, household goods, musical instruments to $625 per item, $13,400 total
11 U.S.C. § 522 (d)(3)
- Health aids
11 U.S.C. § 522 (d)(9)
- Jewelry to $1,700
11 U.S.C. § 522 (d)(4)
- Lost earnings payments
11 U.S.C. § 522 (d)(11)(E)
- Motor vehicle to $4,000
11 U.S.C. § 522 (d)(2)
- Personal injury recoveries to $25,150 (not to include pain & suffering or pecuniary loss)
11 U.S.C. § 522 (d)(11)(D)
- Wrongful death recoveries for person you depended on
11 U.S.C. § 522 (d)(11)(B)
Massachusetts Exemptions
- 2 cows, 12 sheep, 2 swine, 4 tons of hay
Mass. Gen. Laws ch. 235, § 34 (4)
- Bank deposits to $2,500
Mass. Gen. Laws ch. 235, § 34 (15)
Mass. Gen. Laws ch. 246, § 28A
- Beds & bedding; heating unit, stove, refrigerator, freezer & hot water heater; clothing
Mass. Gen. Laws ch. 235, § 34 (1)
- Bibles & books to $500 total
Mass. Gen. Laws ch. 235, § 34 (3)
- Burial plots, tombs, & church pew
Mass. Gen. Laws ch. 235, § 34 (11)
- Cash for fuel, heat, water, or light to $500 per month
Mass. Gen. Laws ch. 235, § 34 (1)
- Cash to $2,500/month for rent, in lieu of homestead
Mass. Gen. Laws ch. 235, § 34 (14)
- Cooperative association shares to $100
Mass. Gen. Laws ch. 235, § 34 (13)
- Food or cash for food to $600
Mass. Gen. Laws ch. 235, § 34 (7)
- Household furnishings to $15,000
Mass. Gen. Laws ch. 235, § 34 (2)
- Jewelry to $1,225
Mass. Gen. Laws ch. 235, § 34 (18)
- Motor vehicle to $7,500; to $15,000 if used by elderly or disabled debtor
Mass. Gen. Laws ch. 235, § 34 (16)
- Moving expenses for eminent domain
Mass. Gen. Laws ch. 79, § 6A
- Sewing machine/computer/TV to $300
Mass. Gen. Laws ch. 235, § 34 (12)
- Trust company, bank, or credit union deposits to $2500
Mass. Gen. Laws ch. 246, § 28A
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Massachusetts Public Benefits Exemptions
Most states exempt public benefits, consistent with the notion that
such benefits are intended as a safety net for the recipient.
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Massachusetts Tools of Trade Exemptions
These are the things you use to make a living. An automobile or truck
can be a tool of trade if you use it as such. Commuting to work doesn't
count, but if driving is a necessary component of transacting your
business, you can claim your vehicle is a tool of trade.
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Massachusetts Wage Garnishment Laws
Most states have a wage garnishment law. In some states, wage garnishment laws can be used in bankruptcy as an exemption to protect income that you had coming due, but not yet received, as of the day you filed, for work you had already done -- so called "earned but unpaid wages".
In some states, the wage garnishment law protects not only wages owed to you, but also wages already in your possession and saved over time preferably holding it in a separate bank account. In other states wage garnishment laws do not protect wages once they are they are in your possession.
There is a federal wage garnishment protection found in the CCPA (Consumer Credit Protection Act), 15 U.S.C. § 1673, which limits how much of your pay can be taken for collection purposes. But this law law is generally found not to be an exemptions in bankrupty. See, e.g. IN RE HORTON, Case No. 10-53495., Bankr. ED Kentucky, 3/4/2011
Some courts have also held that some state wage garnishment laws do not create an exemption in bankruptcy. See, eg. Utah, Tennessee, Vermont, Missouri.
Other courts have held that state garnishment statutes DO create an exemption. See, e.g., Oregon, Iowa, Ohio, Kansas, Indiana.
And in Illinois there are recent published bankruptcy court opinions going both ways on the issue of whether Illinios wage garnishment law can be used as an exemption in bankruptcy.
Click here for collected case law on the question: Do wage garnishment laws create an exemption in bankruptcy?
Finally, if you live in a state that lets you use the Federal bankruptcy exemptions in 522(d), and you choose to use them, then you get no exemption for earned but unpaid wages; the wildcard exemption is your only option. See, e.g. U.S. v. Christensen, 200 B.R. 869 (D.S.D. 1996) (applying FDCPA law, based on similar statutory structure to bankruptcy's opt-out law)
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Massachusetts Wild Card Exemption
Most, but not all, states allow a so-called "wild-card" exemption that can apply to any property. The wild card exemption can be of particular help if one or more of
your other exemptions falls short of protecting your equity. You may
split your wild card exemption amount over multiple items and stack
it atop other exemptions as needed to protect exposed equity.
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Links About Massachusetts Bankruptcy Exemptions
Excerpt from
