The Complications of Fla. Stat. Section 222.25(4). Does Florida's Wildcard Exemption Allow Married Debtors to Double Dip

Authors

Rubina K. Shaldjian, Florida Default Law Group, P.L.

First Page

231

Document Type

Article

Abstract

Bankruptcy courts in every Florida district have addressed how the new wildcard exemption fits into the Florida exemption scheme. Part II of this paper outlines the relevant cases and explains the reasoning behind their differences. While not all of the cases directly address whether a married debtor exempting real property under tenancy by the entirety can also claim the additional $4,000 wildcard exemption, the analyses they contain are germane to the issue. Generally, debtors who do not affirmatively claim the homestead exemption are entitled to the wildcard exemption if they do not receive the benefit of constitutional homestead. Part III considers the threshold issues of how and when a debtor receives the benefit of homestead to decide whether married debtors exempting a residence under the law of tenancy by the entireties may also claim the $4,000 wildcard exemption. Specifically, the determination of whether constitutional homestead is self-executing helps determine what steps debtors must take, if any, in order to receive a benefit without affirmatively claiming it. This section also examines the two opposing arguments regarding the timeframe during which courts assess the debtor's relationship with the property for purposes of the wildcard exemption. It explains that the rigid approach of not allowing debtors to modify their exemptions for section 222.25(4) purposes leads to negative consequences, and is contrary to bankruptcy policy. Finally, Part IV uses the analysis from the previous section to examine the diverging opinions regarding debtors' ability to exempt their homes as tenancy by the entireties and claim the wildcard exemption. This section also explores the history and policy behind tenancy by the entireties law as well as the legislative history behind Florida's wildcard exemption. The paper concludes that a married debtor who exempts real property under tenancy by the entireties law receives the benefit of Florida's constitutional homestead exemption and, therefore, may not claim the additional $4,000 personal property exemption under section 222.25(4).27

Recommended Citation

Rubina K. Shaldjian, The Complications of Fla. Stat. Section 222.25(4). Does Florida's Wildcard Exemption Allow Married Debtors to Double Dip, 22 St. Thomas L. Rev. 231 (2010).
Available at: https://scholarship.stu.edu/stlr/vol22/iss2/3