Florida Exemption Case Law

This page analyzes the most important Florida court decisions on statutory exemptions from creditors, including retirement accounts, annuities, wages, and life insurance. Decisions regarding the homestead exemption are covered separately.

The Fraud Limit on Chapter 222 Exemptions

The fraud limit on Florida’s exemptions is written into chapter 222 itself, so it reaches the exemptions that chapter provides and stops at the homestead exemption, which article X of the Florida Constitution supplies. Florida courts construe the exemption statutes liberally in the debtor’s favor, so that debtors and their families do not become public charges, but never as an instrument of fraud on creditors (Sneed, 1938; Slatcoff, 1954; Killian, 1980; Goldenberg, 2001).

Section 222.29 provides that an exemption “provided by this chapter” is not effective if it results from a fraudulent transfer under chapter 726. Section 222.30 separately treats a debtor’s own conversion of non-exempt assets, made with intent to hinder, delay, or defraud a creditor, as a fraudulent asset conversion; its decisions are collected on the fraudulent-transfer case-law page.

Fraudulent Conversion

Converting non-exempt assets into exempt form is not by itself fraudulent, but a chapter 222 exemption falls where the debtor made the conversion with intent to hinder, delay, or defraud creditors.

Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001). Leading case. Sections 222.29 and 222.30 do not reach property the constitutional homestead exemption protects, so a homestead acquired with non-exempt funds to defeat creditors remains exempt even where the debtor intended to hinder, delay, or defraud them. The Florida Supreme Court answered the question on certification from the Eleventh Circuit.

Bank Leumi Trust Co. of New York v. Lang, 898 F. Supp. 883 (S.D. Fla. 1995). Within six months of the suit, the Langs had sold their New Jersey home and bought a $522,000 Florida home and roughly $500,000 in annuities. The homestead survived, article X’s three exceptions being read narrowly; the annuities did not, the court finding “an effort to hinder or delay” even if not fraud in the strict sense. The wife, who had signed the tax return listing the annuities and then declined to testify, lost too.

Slatcoff v. Dezen, 76 So. 2d 792 (Fla. 1954). Section 222.14 has no dollar ceiling, and the amount a debtor puts into insurance is relevant to, though not conclusive of, fraud. The Court assumed the debtor honest “unless and until the contrary is established,” while “proof of fraud operates as a permanent brake upon the misuse of the exemption laws.”

In re Rensin, 600 B.R. 870 (Bankr. S.D. Fla. 2019). The Belize trustee of Rensin’s trust bought two annuities, one with trust assets and one using $350,000 Rensin sent through counsel. Because § 222.30 requires a conversion “by a debtor” and Rensin had no legal power to require the purchases, which he had objected to, the annuities were exempt under § 222.14. The rest went against him: creditors could attach every trust asset from inception, and his homestead exemption fell under 11 U.S.C. § 522(o) as a purchase made to hinder and delay creditors.

In re Mart, 88 B.R. 436 (Bankr. S.D. Fla. 1988). A private annuity the debtor bought from his own irrevocable spendthrift trust’s trustee qualified; the statute gives no basis to restrict the exemption to unrelated public issuers. A no-fraud finding carried the result: the debtor was solvent when he bought the annuity 13 months before bankruptcy, it held under 10% of his net assets, and an unrelated estate-planning specialist had proposed it for estate-tax purposes. Sections 222.29 and 222.30 did not yet exist.

In re Mackey, 158 B.R. 509 (Bankr. M.D. Fla. 1993). Timing and concealment are the two chief indicators that a conversion was made with fraudulent intent, and later courts cite this decision for that formulation. The debtor received $24,986.40 at a closing, bought two annuities the same day, filed a month later, and omitted the sale from her schedules; the § 222.14 exemption fell. Sections 222.29 and 222.30 now supply the statutory rule.

Marie v. Green (In re Green), 268 B.R. 628 (Bankr. M.D. Fla. 2001). Debtors who omitted roughly $793,000 of annuities, IRAs, and life policies from their schedules were denied a discharge for a knowing false oath. The bad-faith concealment also cost them the exemptions: they waited too long to amend and lost the three life policies and all nine IRAs. The annuity alone stayed exempt, because its $730 monthly income had been disclosed on the original schedules.

Converting Assets Into Exempt Form

Moving money from one already-exempt asset into another cannot be a fraudulent conversion, because a creditor could not have reached the original asset either.

In re Kimmel, 131 B.R. 223 (Bankr. S.D. Fla. 1991). A debtor can defraud creditors only by disposing of property they could have reached, so an IRA-to-IRA purchase and an annuity bought for an already-exempt pension plan were not voidable transfers. Life policies and an annuity bought after the debtor knew of a personal-injury suit were also upheld: liability was undetermined, the debtor was insured, and the purchases continued a financial-planning pattern running back to 1978.

In re Horath, 116 B.R. 835 (Bankr. M.D. Fla. 1990). Five thousand dollars moved from savings into two IRAs three months before filing, while the debtors were unemployed and facing threatened litigation, stayed exempt; no Code provision condemns converting non-exempt property into exempt form. The court decided only the exemption question, before §§ 222.29 and 222.30 existed, and did not address denial of discharge or a § 548 avoidance action.

In re Schwarb, 150 B.R. 470 (Bankr. M.D. Fla. 1992). Receding in part from In re Levine, the court held that a chapter 222 exemption may be denied where extrinsic evidence shows the debtor converted non-exempt assets into exempt form specifically to defeat creditors. Section 222.30 carried that intent standard into statute the next year. The amended order denied the debtors’ summary-judgment motion and reset the objection for a pre-trial conference.

In re Coplan, 156 B.R. 88 (Bankr. M.D. Fla. 1993). Converting an IRA into an annuity converts one exempt asset into another and is not impermissible pre-bankruptcy planning. A spousal IRA is likewise not disqualified by the source of the money that funded it; the court refused to trace contributions to the working spouse’s earnings. The decision’s separate homestead ruling, which capped a new Floridian at his former state’s dollar figure, did not survive Havoco.

Cristol v. Blum (In re Blum), 41 B.R. 816 (Bankr. S.D. Fla. 1984). Liquidating securities to pay down homestead mortgages and buy an annuity shortly before bankruptcy was legitimate planning. Denying a discharge under 11 U.S.C. § 727(a)(2) requires extrinsic evidence that the debtor actually intended fraud, beyond the conversion itself. The decision predates §§ 222.29 and 222.30, so it no longer states the whole rule for annuities; the homestead half survives through Havoco.

In re Lazin, 221 B.R. 982 (Bankr. M.D. Fla. 1998). The § 222.14 exemption, unlike the constitutional homestead exemption, is statutory and can be lost where the annuity was bought with non-exempt property with specific intent to defraud. No such intent was shown where a 79-year-old widow’s investment account fell below its minimum balance, forcing liquidation, and annuities were chosen for stable income; §§ 222.29 and 222.30, described above, now supply the statutory rule. It is a separate, later order in the same case as the Social Security ruling at 217 B.R. 332.

Tracing Misappropriated Money

A creditor whose own money paid the insurance premiums may impress an equitable lien on the proceeds, but only to the extent of what it can actually trace.

Board of Public Instruction for Bay County v. Mathis, 181 So. 147 (Fla. 1938), and 195 So. 148 (Fla. 1940). Leading case. A school superintendent had used embezzled school-fund money to pay premiums on $20,000 of life insurance payable to his own estate. The court impressed an equitable lien on the proceeds measured by the misappropriated premium payments; the exemption statute controlled the balance. On remand the lien was fixed by tracing: of roughly $28,438 embezzled, only $1,605.35 reached premium payments, and the lien was limited to that sum.

Eppinger, Russell & Co. v. Canepa, 20 Fla. 262 (Fla. 1883). No formal assignment is required to keep proceeds from the insured’s creditors where the policy itself declares the persons for whose benefit the insurance was effected. Insolvency alone did not change the result, because the premiums were reasonable given the insured’s condition in life and no purpose to divert money away was proved. Sections 222.29 and 222.30 now supply the statutory rule for intentional conversions.

Asset	Statute	What is protected	What defeats it
Annuity contracts	§ 222.14	Proceeds “upon whatever form,” including pre-maturity surrender value	Contract “effected for the benefit of such creditor”; no actual annuity contract; debtor is owner but not beneficiary; fraudulent conversion
Life insurance cash value	§ 222.14	Cash surrender value, as against the insured’s creditors	Debtor owns a policy on someone else’s life; loss of Florida residency; fraudulent conversion
Life insurance death proceeds	§ 222.13	Proceeds paid to a designated beneficiary, as against the insured’s creditors	Proceeds payable to the insured or the estate; a contrary policy term or valid assignment; the beneficiary’s own creditors
Disability income benefits	§ 222.18	Benefits “of whatever form,” lump-sum settlements included, and their traceable deposits	Policy “effected for the benefit of such creditor or creditors”; untraceable funds; a tort settlement that is not policy benefits
Retirement accounts	§ 222.21(2)	Funds in a plan meeting one of three IRS-qualification routes, ERISA or not	Account not maintained under its governing instrument; QDRO alternate payee; surviving spouse’s elective share; chapter 61 support order; IRS levy
Inherited IRAs	§ 222.21(2)(c)	Exemption continues after a direct transfer or eligible rollover, retroactively	Federal § 522(b)(3)(C) does not reach them after Clark
Motor vehicle	§ 222.25(1)	Up to $5,000 in a single motor vehicle	Concealed property is charged against the exemption
Health aids	§ 222.25(2)	The prescribed device or modification, or a vehicle converted and designed for the disability	The device does not make the whole vehicle exempt
Earned income credit	§ 222.25(3)	An IRC § 32 refund or credit and its traceable deposits	Child or spousal support; a credit under another Code section, such as the § 24 child tax credit
Wildcard	§ 222.25(4)	$4,000 of personal property	Claiming or receiving the homestead exemption’s benefits; child or spousal support

Constitutional Challenges to Chapter 222

The Florida Constitution’s personal-property exemption does not cap what the legislature may exempt by statute, and no chapter 222 exemption has fallen to that argument (In re Bryan, Bankr. S.D. Fla. 1989; In re Rosenbloom, Bankr. S.D. Fla. 1991).

Milam v. Davis, 123 So. 668 (Fla. 1929). Leading case. The statutory life-insurance exemption does not violate article X of the Florida Constitution: the constitutional personal-property exemption “is not exclusive and is not a limitation upon any and all statutory exemptions,” so the legislature may exempt insurance proceeds beyond the constitutional figure.

Cooper v. Taylor, 54 F.2d 1055 (5th Cir. 1932). Applying Milam, the Fifth Circuit held that the constitutional $1,000 personal-property exemption does not limit the legislature’s power to exempt other property, so the § 222.14 predecessor validly exempted the cash surrender values of policies on the bankrupt’s life, about $3,600. The court records that the statute was passed in 1925 to exempt cash value during the insured’s life, a protection the predecessor of § 222.13 did not supply.

In re Seilkop, 107 B.R. 776 (Bankr. S.D. Fla. 1989). A trustee who argues that §§ 222.14 and 222.21(2)(a) are invalid because they exempt more than the Florida Constitution allows carries the burden and fails without authority; the debtor’s annuity and pension plan were both exempt.

In re Wines, 113 B.R. 787 (Bankr. S.D. Fla. 1990). Section 222.14 does not violate article X, section 4, so an annuity of unlimited value is exempt; the constitutional $1,000 figure is not a ceiling on statutory exemptions. The same debtor lost under § 222.201, because 11 U.S.C. § 522(d)(10)(E) requires proof that the property is reasonably necessary for support, which the record did not show.

In re Kelley, 21 B.R. 375 (Bankr. M.D. Fla. 1982). A single debtor’s equal-protection challenge to § 222.20 failed: the opt-out is a valid exercise of 11 U.S.C. § 522(b), and the head-of-family classification then governing Florida’s exemptions bore a fair and substantial relation to the law’s objects. The classification premise is obsolete, article X, section 4 having read “a natural person” since a 1984 amendment, and § 222.25 now supplies exemptions to any debtor; the validity holding stands.

Annuity Proceeds in Whatever Form

Florida’s annuity exemption covers an annuity’s proceeds “upon whatever form,” and the Florida Supreme Court has held that “proceeds” include the money an owner receives by surrendering the contract before maturity. That phrase and “shall not in any case” make the form of payment irrelevant (Bank of Greenwood v. Rawls, 1934; Zuckerman, 1994; Goldenberg, 2001; Faro, 2001).

Section 222.14 covers two assets “upon whatever form”: life insurance cash surrender value where the insured is a Florida citizen or resident, and annuity proceeds where the contract was issued to one. Creditors of the insured or of the annuity’s beneficiary cannot reach either by attachment, garnishment, or legal process. The only stated exception is a policy or contract “effected for the benefit of such creditor.”

Goldenberg v. Sawczak, 791 So. 2d 1078 (Fla. 2001). Leading case. “Proceeds” of an annuity contract include the money received by surrendering it before maturity, so the proceeds of an annuity carrying a surrender penalty are exempt. The only difference from post-maturity payments is the surrender charge, and the source of the premium money is irrelevant. Goldenberg had bought seven deferred annuities in 1989, years before the 1992 malpractice that produced a $4,000,629 verdict, and filed Chapter 7 the day the jury began deliberating, and no fraud was found.

In re McCollam, 612 So. 2d 572 (Fla. 1993). Because the Legislature did not define “annuity contracts,” their plain meaning governs, a right to receive fixed periodic payments for life or a term of years. Section 222.14 therefore “clearly exempts all annuity contracts from creditor claims,” the Court held 4–3 on a question certified by the Eleventh Circuit.

Applying that breadth, In re Dixson, 153 B.R. 594 (Bankr. M.D. Fla. 1993), exempted Arizona lottery winnings paid through an annuity the State had bought; the decision was rev’d in part, vacated in part, 116 F.3d 491 (11th Cir. 1997) (table).

Bank of Greenwood v. Rawls, 158 So. 173 (Fla. 1934). “Cash surrender value” under the § 222.14 predecessor includes any cash value obtainable through negotiation or a surrender agreement, not only a value the insured could legally enforce against an unwilling insurer. A disability payment obtainable only by surrendering the whole life policy was exempt, and the insolvent husband’s endorsement of the check to his wife did not defraud his creditors.

In re Morrow, 122 B.R. 151 (Bankr. M.D. Fla. 1990). An employer’s variable-return retirement plan is not “the proceeds of annuity contracts” under § 222.14: an annuity is a right to fixed periodic payments, and this plan’s payout varied with how the contributions were invested.

Guardian Life Ins. Co. of America v. Solomon (In re Solomon), 95 F.3d 1076 (11th Cir. 1996). An actual annuity contract that the parties intended to create is required, so a garden-variety release of liability did not qualify. Section 222.14 “does not shield all debts or ‘accounts receivable’ structured to resemble annuities,” a rule bankruptcy courts apply from the document’s four corners (Conner, Bankr. M.D. Fla. 1994; Turner, Bankr. N.D. Fla. 2005; Holt, Bankr. M.D. Fla. 2010).

What Counts as an Actual Annuity Contract

A stream of periodic payments is not enough: § 222.14 requires an actual annuity contract the parties intended to create, and courts decide that from the document’s four corners.

In re Conner, 172 B.R. 119 (Bankr. M.D. Fla. 1994). A dissolution judgment’s property-settlement payments of $1,000 a month for ten years were not annuity proceeds. The four corners showed no intent to create an annuity contract, and “the payment stream alone is insufficient to establish an annuity contract.” The Eleventh Circuit quoted the rule with approval in Solomon.

In re Dillon, 166 B.R. 766 (Bankr. S.D. Fla. 1994). Annual lifetime payments an insurer agreed to make directly in settling the debtor’s employment suit were not annuity payments: no annuity was ever purchased, the document was titled a settlement agreement, and the word “annuity” appears nowhere in it. Reading § 222.14 to reach any document providing annual payments over time “would render the purchase of an actual annuity contract meaningless.”

In re Bruce, 224 B.R. 505 (Bankr. M.D. Fla. 1998). Florida Lotto installments of $78,500 a year for twenty years were not annuity proceeds, because the State pays winners by redeeming zero-coupon bonds and does not purchase annuity contracts, so no annuity naming the winner ever existed. Arizona’s lottery, which did buy an annuity for the winner in Dixson, is the contrast; the results turn on what the paying state actually bought.

In re Turner, 332 B.R. 461 (Bankr. N.D. Fla. 2005). A person listed on an annuity application only under “Measuring Lives” is not a beneficiary who can claim the exemption. A settlement document titled “Release Of All Claims,” never naming the debtor as beneficiary or payee, is likewise “a garden variety release of liability,” not an annuity contract.

In re Holt, 422 B.R. 778 (Bankr. M.D. Fla. 2010). The debtor drafted a document titled “Promissory Note” covering the $270,000 sale of his stock; it was not an annuity contract, despite monthly payments that survived either party’s death. It was simply a stock-sale agreement that never mentions an annuity.

Annuity Owner Versus Beneficiary

Florida’s annuity exemption belongs to the person who receives the payments as the contract’s beneficiary, and an owner whose contract pays someone else has, by the statute’s terms, no exemption for the ownership interest.

In re Ebenger, 40 B.R. 463 (Bankr. S.D. Fla. 1984). Leading case. Section 222.14’s protected “beneficiary” is not confined to third parties who take on someone’s death; it includes the annuitant himself. The $98,477.14 lump-sum value of an annuity the debtor’s law firm had provided for him was therefore exempt from his own creditors. “The term ‘beneficiary’ is not a term of art necessarily restricted to those who receive a benefit upon the death of another.”

In re Benedict, 88 B.R. 387 (Bankr. M.D. Fla. 1988). Structured-settlement annuities bought with personal-injury settlement proceeds were exempt even though a settlement-services company, not the debtor, was the record owner; the settlement agreements showed the contracts were purchased for the debtors. Payments deposited into a checking account kept the exemption “so long as the funds can be properly traced into the account, and are readily accessible to the debtor.” A companion decision, 88 B.R. 390, reached the same result.

Connor v. Seaside National Bank, 135 So. 3d 508 (Fla. 5th DCA 2014). The only district-court-of-appeal decision on the question holds that a former wife awarded a percentage interest in her ex-husband’s annuity contracts by the dissolution judgment is a “beneficiary” entitled to the garnishment exemption. She was not the named annuitant, but “beneficiary” takes its plain meaning, construed liberally in the debtor’s favor.

In re Allen, 203 B.R. 786 (Bankr. M.D. Fla. 1996). “Beneficiary” means any person with a beneficial interest in the annuity, including the annuitant receiving the payments. The same debtor lost the cash-surrender-value claim for a policy he owned on his former law partner’s life, that exemption belonging to the insured. A West Virginia turnover order holding his IRAs non-exempt under that state’s law did not collaterally estop the Florida § 222.21 claim.

In re Wilbur, 206 B.R. 1002 (Bankr. M.D. Fla. 1997). An annuity contract issued to a corporation was exempt because the proceeds would issue to the debtor, a Florida resident: § 222.14 requires that the proceeds, not the contract itself, be issued to a resident. The same collateral-estoppel argument rejected in Allen, 203 B.R. 786, failed here for the same reasons.

In re Berghman, 235 B.R. 683 (Bankr. M.D. Fla. 1999). A structured-settlement annuitant validly sold part of his payment rights, so the sold payments were not estate property. Whatever interest he had not sold remained exempt under § 222.14, because, unlike in Solomon, the debtor was named as annuitant in an actual annuity contract.

In re Belue, 238 B.R. 218 (Bankr. S.D. Fla. 1999). A structured-settlement payee named in the annuity is a protected beneficiary, and the owner’s retained right to revoke and reassign the payee did not defeat the exemption. “The determinative issue is not who the annuity is issued to, but rather who receives the proceeds as beneficiary,” the court wrote. Judge Mark disavowed his contrary “issued to” reading in In re Pizzi, 153 B.R. 357 (Bankr. S.D. Fla. 1993), where the State owned a lottery annuity and the debtor received “prize winnings, not annuity payments.”

Who May Raise the Exemption Against a Writ: A Certified Conflict

Florida’s Second and Fourth Districts are divided, in a conflict the Second District certified, over whether an annuity’s owner or issuer may assert the annuity exemption for a debtor-payee who does not move to dissolve the writ.

The Owner or the Issuer May Raise It

Windsor-Thomas Group, Inc. v. Parker, 782 So. 2d 478 (Fla. 2d DCA 2001). At least where the debtor is not the annuity’s owner, either the owner or the issuer may raise § 222.14 even if the debtor does not move to dissolve the writ, and the Second District certified conflict with State Farm.

Only the Payee May

State Farm Life Ins. Co. v. Florida Asset Financing Corp., 786 So. 2d 1 (Fla. 4th DCA 2000). The insurer had standing to challenge the writ but not to assert the § 222.14 exemption for the payee, “the one who was injured” and the only person needing the statute’s protection. The payee had expressly waived the exemption on independent counsel’s advice and consented to the writ, losing $72,000 in future annuity payments, so the exemption can be waived by the person it protects.

No Florida Supreme Court decision resolving the certified conflict has been located. Whether the payee must personally raise the exemption therefore depends on the district, and a payee who expressly waives it loses it.

Tax Qualification of Retirement Accounts

Florida exempts money in a tax-qualified retirement plan or account whether or not ERISA covers it, and the Eleventh Circuit has held that an IRA not maintained in accordance with its own governing instrument forfeits the exemption.

Section 222.21(2)(a) exempts an owner’s, participant’s, or beneficiary’s interest in a fund or account maintained under a plan that the IRS has preapproved or determined tax-exempt under the Code sections the statute lists. A plan that is neither still qualifies if the claimant proves by a preponderance that it substantially complies, or would comply but for someone else’s negligent or wrongful conduct. Paragraph (2)(b) provides that ERISA coverage is not required.

Yerian v. Webber (In re Yerian), 927 F.3d 1223 (11th Cir. 2019). The exemption requires that the IRS determined the plan or governing instrument tax-exempt, that the IRA has since been “maintained in accordance with” it, and that no final proceeding holds otherwise. Titling IRA-owned cars in his and his wife’s names and using an IRA-owned condominium personally breached Yerian’s IRA LLC Agreement, so the exemption was lost. An instrument can impose requirements beyond the tax code, so an IRA can be tax-compliant and still forfeit the Florida exemption.

In re Baker, 590 F.3d 1261 (11th Cir. 2009). Section 222.21(2)(a)1 requires a profit-sharing plan to qualify under IRC § 401(a) and does not require ERISA compliance, which paragraph (2)(b), added in 2005, confirms. The Eleventh Circuit reversed the ERISA-based ruling and remanded for a § 401(a) determination without holding the plan exempt.

The ERISA-preemption decisions. From 1989 to 1993 Florida’s bankruptcy courts divided over whether ERISA preempted § 222.21, the Southern District holding it did not and the Middle District holding it did. The Eleventh Circuit closed the question in In re Schlein, 8 F.3d 745 (11th Cir. 1993): ERISA’s saving clause leaves state retirement exemptions in force, a result the Legislature confirmed in what is now § 222.21(2)(b).

The Southern District’s decisions include In re Gurvich, 132 B.R. 976 (Bankr. S.D. Fla. 1990). The Middle District’s decisions include In re Gardner, 118 B.R. 860 (Bankr. M.D. Fla. 1990); In re Knowles, 123 B.R. 428 (Bankr. M.D. Fla. 1991); and In re Hadnot, 138 B.R. 637 (Bankr. M.D. Fla. 1992). What survives of Gardner and Knowles is their § 222.201 proof point: a debtor claiming the federal pension exemption must show the payment right arises from illness, disability, death, age, or length of service and is reasonably necessary for support.

Roemelmeyer v. Gefen (In re Gefen), 35 B.R. 368 (Bankr. S.D. Fla. 1984). IRA accounts held as bank deposits, with no arrangement for periodic payments and no limit on the debtor’s control, are not annuity contracts under § 222.14. The decision predates § 222.21, whose current text expressly exempts funds qualified under IRC §§ 408 and 408A, which is why the retirement exemption comes from that statute rather than the annuity statute.

In re Ewell, 104 B.R. 458 (Bankr. M.D. Fla. 1989). An IRA established under IRC § 408(a) sits outside ERISA’s preemptive reach, because an individual who sets up his own IRA is not an employer or an employee organization and ERISA expressly excludes IRAs from coverage. The court also read the 1987 staff analyses as showing the Legislature knowingly created an uncapped exemption with no support requirement.

In re Francisco, 204 B.R. 799 (Bankr. M.D. Fla. 1996). A self-funded IRA that was never part of any employer plan is exempt under § 222.21(2)(a), the statute’s reference to IRC § 408 carrying the claim. The plain language controls over drafting history, and ERISA does not preempt the statute as to IRAs.

In re Luttge, 204 B.R. 259 (Bankr. S.D. Fla. 1997). A prototype SEP/IRA adopted by a physician’s professional association, with the debtor as sole shareholder and only eligible participant, was established under IRC § 408 and exempt. Nothing in § 222.21’s text or history limits it to ERISA plans, so tax-code compliance alone carries the exemption, as the Eleventh Circuit later confirmed in Baker.

In re Rosenbloom, 132 B.R. 970 (Bankr. S.D. Fla. 1991). Filing a bankruptcy petition is not an illegal alienation that disqualifies a plan, because a contrary rule would automatically disqualify every plan on an involuntary petition, and a bankruptcy court is not bound by IRS private letter rulings. The decision also repeats Milam‘s rule that the constitutional $1,000 personal-property exemption is not a ceiling on statutory exemptions.

In re Groff, 234 B.R. 153 (Bankr. M.D. Fla. 1999). The objecting trustee must show that a plan is not qualified, in operation as well as form, and the trustee’s attacks on a SARSEP all failed unproven. The court also held that IRC § 408(d)(6) requires no qualified domestic relations order for a distribution of IRA or SEP funds to a former spouse.

Neilson v. Laing (In re Laing), 329 B.R. 761 (Bankr. M.D. Fla. 2005). An objection pleading only that the trustee has been unable to verify whether the accounts are qualified is legally insufficient to overcome the presumptive validity of the debtor’s claim. With no evidence that the accounts were unqualified, two IRA rollovers and a $1.2 million annuity stayed exempt. An earlier order in the dispute, 329 B.R. 759, had refused a post-trial amendment of the pleadings.

In re Handshaw, 198 B.R. 633 (Bankr. M.D. Fla. 1996). A county employee’s deferred-compensation account under IRC § 457 was not exempt, because § 457 was not then among the Code sections § 222.21(2)(a) listed. The method survives, the result does not: the current statute lists § 457(b), so a § 457(b) plan preapproved or determined tax-exempt is exempt today, but a plan outside the enumerated sections still gets no § 222.21 exemption. The court separately allowed amendment of the exemption schedule as of course absent bad faith or creditor prejudice.

In re Madia, 294 B.R. 177 (Bankr. M.D. Fla. 2003). A New York City deferred-compensation plan under IRC § 457 failed the same way, and § 522(d)(10)(E) did not reach it either, the deferred compensation not being payable on account of illness, disability, death, age, or length of service. It carries the same limit as Handshaw: the current statute lists § 457(b), so the method survives and the result does not.

In re Ladd, 258 B.R. 824 (Bankr. N.D. Fla. 2001). A mandatory 401(k) termination distribution left in a segregated checking account and never rolled over stayed exempt, under both the pre-2005 § 222.21(2)(a) and 11 U.S.C. § 522(d)(10)(E) through § 222.201. A 401(k) check traced through a relative’s account into a new IRA got the same result in In re Hickox, 215 B.R. 257 (Bankr. M.D. Fla. 1997). Both construed the statute’s former “plan” wording; no decision reconciling them with the current “fund or account” text (Robertson v. Deeb, 2009) was located.

Inherited IRAs After Clark v. Rameker

Florida’s statute keeps an inherited IRA exempt after a direct transfer or eligible rollover, and the federal bankruptcy exemption for retirement funds does not reach an inherited IRA at all.

Section 222.21(2)(c) keeps exempt retirement funds exempt after the owner’s death when they pass “by reason of a direct transfer or eligible rollover that is excluded from gross income,” an inherited IRA included. It also exempts an interest received in a transfer incident to divorce, and it applies retroactively “to all inherited individual retirement accounts” and divorce transfers regardless of date.

In Clark the Supreme Court construed the federal exemption for “retirement funds” in 11 U.S.C. § 522(b)(3)(C), while a Florida debtor claims the state exemption through § 522(b)(3)(A). The two routes are separate, and no decision applying Clark against a Florida debtor claiming § 222.21(2)(c) was located. The federal exemption is also capped: § 522(n) limits the exempt value of an IRA to an indexed dollar amount, excluding rollovers from employer plans and their earnings, and it does not apply to SEPs or SIMPLEs.

Clark v. Rameker, 573 U.S. 122 (2014). Funds in an inherited IRA are not “retirement funds” within 11 U.S.C. § 522(b)(3)(C), the Court held in an opinion by Justice Sotomayor. The holder may never contribute, must take required withdrawals regardless of age, and may empty the account at any time without penalty, and the test is objective. The line runs on the rollover election: a spouse who rolls the funds into his or her own IRA is outside the holding, and a spouse who keeps the account as an inherited IRA is inside it.

Robertson v. Deeb, 16 So. 3d 936 (Fla. 2d DCA 2009). The Second District held the 2008 statute’s exemption covered only the original “fund or account,” so an IRA inherited from a parent was a separate account outside it and could be garnished. Paragraph (2)(c), which protects exactly that transfer and applies retroactively, has superseded the decision, and In re Ard, 435 B.R. 719 (Bankr. M.D. Fla. 2010), which ordered an inherited IRA turned over on similar reasoning, is superseded with it.

How a Plan Loses Its Qualification

A retirement plan that was properly established can still lose the Florida exemption through the way its owner operates it, and the objecting party must prove that with evidence about the plan’s operation.

Dzikowski v. Blais (In re Blais), 220 B.R. 485 (S.D. Fla. 1997). Qualification turns on a plan’s operation as well as its form, so a favorable IRS determination letter addressed only to the form does not establish it. Refusing to look behind the letter was reversible error where stipulated facts showed serial owner loans exceeding plan and tax-code limits. The current statute makes an IRS preapproval or determination sufficient unless a final proceeding holds otherwise; what survives, and what Yerian enforces, is that an account must be maintained in accordance with its governing instrument.

In re Fernandez, 236 B.R. 483 (Bankr. M.D. Fla. 1999). Facially qualified plans the IRS never disqualified still lost their protection because of how the debtor operated them. The plans bought roughly $90,000 of raw land the debtor admitted was for his own retirement residence and financed his personal homes through an unrepaid $50,000 loan; plan assets must be held solely for participants’ benefit. Its ERISA-qualified premise is superseded by § 222.21(2)(b); the operation holding is what survives.

In re Harris, 188 B.R. 444 (Bankr. M.D. Fla. 1995). A physician’s profit-sharing plan used as a personal bank, through undocumented and unrepaid loans exceeding $216,000 and unappraised land investments, was not exempt. The decision read the pre-2005 statute as making ERISA qualification a condition precedent, which § 222.21(2)(b) has displaced; its operation holding pairs with Blais and Yerian.

In re Banderas, 236 B.R. 837 (Bankr. M.D. Fla. 1998). An otherwise qualified IRA is not exempt if funded from a non-qualified plan. The profit-sharing plan behind this rollover took effect months after the debtor retired, when his professional corporation had no employees, and a trust cannot exist for the exclusive benefit of employees when there are none. The burden of proving disqualification stays on the objecting trustee.

In re Hughes, 293 B.R. 528 (Bankr. M.D. Fla. 2003). The debtor borrowed $27,000 from his IRA and lent it to a corporation he controlled, and the exemption was lost at that moment. Under IRC § 408(e)(2)(A), an account involved in a prohibited transaction ceases to be an IRA as of that taxable year’s first day; repayment later that year cured nothing.

In re Sutton, 272 B.R. 802 (Bankr. M.D. Fla. 2002). A sole proprietor’s prototype Keogh, with the debtor as sole participant, employer, administrator, and beneficiary, was found not exempt under the pre-2005 statute’s ERISA-qualification reading. The statute has moved: § 222.21(2)(b) now provides that ERISA coverage is not required, and Baker reached the opposite result for a materially identical Keogh under the amended text.

Retirement Accounts After Divorce

Once a dissolution judgment awards a spouse an interest in retirement benefits, that interest is his or her own exempt property, and the other spouse cannot reach it as a creditor.

DeSantis v. DeSantis, 714 So. 2d 637 (Fla. 4th DCA 1998). Once the dissolution judgment awards each spouse the interest in his or her own pension plan, those assets stop being marital property. The trial court therefore could not enter a post-judgment qualified domestic relations order against the wife’s own plan to collect a $7,000 equalization payment. An equitable-distribution award is enforced by the ordinary remedies of creditor against debtor, and § 222.21 bars those remedies against the plan.

Garcia-Lawson v. Lawson, 211 So. 3d 140 (Fla. 4th DCA 2017). Applying DeSantis, the court struck an equitable lien that had been imposed on a former wife’s equitable-distribution interest in her ex-husband’s retirement benefits as a sanction for an unpaid equalization payment. Once the judgment awarded her that interest it was her sole property, and § 222.21(2) exempts the fund from claims of creditors of the owner.

In re Cason, 211 B.R. 72 (Bankr. N.D. Fla. 1997). A debtor awarded half of his ex-wife’s Florida Retirement System benefits kept the exemption even though no qualified domestic relations order existed. The alternate-payee branch of § 222.21 reaches only ERISA-qualified plans, and a government plan is outside ERISA, so that branch could not carry the claim. But Fla. Stat. § 121.131 protects benefits accrued to “any person,” a former spouse holding an accrued share by court order included.

In re Swarup, 521 B.R. 382 (Bankr. M.D. Fla. 2014). Retirement accounts awarded to the debtor in an out-of-state marital-property division were exempt even though the written order came three weeks after her bankruptcy petition. A contingent or equitable interest is still an “interest” under § 222.21(2), and if an asset is estate property the debtor holds enough of an interest to claim it exempt. A footnote adds that the same accounts were not exempt under § 222.14, because she was not listed as a beneficiary on any of them.

Limits on the Retirement Exemption

Florida’s retirement exemption does not protect an account against a qualified domestic relations order or a surviving spouse’s elective share, and the courts have refused to let it defeat a chapter 61 support order or an IRS levy. An exemption statute is not read to let a debtor claim its benefit against the very persons he owes support (Siegel v. Siegel, Fla. 4th DCA 1997; Anderson v. Anderson, Fla. 1950). The exemption also reaches only proceedings filed on or after the statute’s October 1, 1987 effective date.

Paragraph (2)(d) of § 222.21 withholds the exemption from two claimants: an alternate payee holding a qualified domestic relations order, and a surviving spouse enforcing an elective-share order under chapter 732, part II. The alternate payee’s own interest is then exempt from her creditors other than the Department of Revenue. ERISA’s anti-alienation clause, 29 U.S.C. § 1056(d), itself excepts a qualified domestic relations order, a voluntary revocable assignment of up to 10% of a benefit payment, and certain offsets in the plan’s favor.

Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365 (1990). Courts may not craft equitable exceptions to ERISA’s anti-alienation provision; the Supreme Court barred a constructive trust on the pension benefits of a union official who had embezzled more than $377,000 from his union. On remand the Tenth Circuit held en banc that the provision stops protecting benefits once paid to the participant, 39 F.3d 1078 (10th Cir. 1994).

Siegel v. Siegel, 700 So. 2d 414 (Fla. 4th DCA 1997). The exemption from “all claims of creditors” does not shield IRA assets against an order enforcing chapter 61 support obligations, and a court setting a contempt purge amount may look to the IRA. The limit is independent of paragraph (2)(d), a former spouse enforcing support through contempt not being a creditor asserting a creditor’s claim.

Araguel v. Bryan, 344 So. 3d 604 (Fla. 1st DCA 2022). A guardianship estate’s fees and costs are “claims” of a “creditor” in the ordinary sense of those undefined words, so a guardian may not retain a deceased ward’s IRAs to pay them. The statute letting a guardian keep funds to cover final administration costs places no lien on the property, and an IRA passes directly to its beneficiaries when the owner dies, so the accounts were never the guardian’s to retain.

In re Brackett, 259 B.R. 768 (Bankr. M.D. Fla. 2001). The alternate-payee carve-out was read to require a qualified domestic relations order only for an ERISA-qualified plan, and absent evidence that the two IRAs were ERISA-qualified they stayed exempt. That was a burden-of-proof outcome, and applying a six-factor test the court found a $200-a-month obligation was a property settlement rather than alimony and therefore not exempt; the opinion’s “§ 222.21(2)(b)” is today’s paragraph (2)(d).

Lawler v. SunTrust Securities, Inc., 740 So. 2d 592 (Fla. 5th DCA 1999). IRC § 6334 does not exempt an IRA from an IRS levy, and § 222.21 cannot, because state-law restraints cannot limit federal levy power; a custodian honoring the levy is discharged. The ruling runs against the custodian, and the court noted the accountholder “may have remedies she can assert against the IRS for an improper levy.”

Beardsley v. Admiral Ins. Co., 647 So. 2d 327 (Fla. 3d DCA 1994). Construing § 222.21(1), which protects pension money a United States pensioner received within the preceding three months where needed for support, the court held that commingling a non-exempt deposit does not automatically strip an account of its exemption. Exempt funds keep their character so long as their source is reasonably traceable; the court should allocate where possible, and the exemption fails only where separating the funds is impossible.

Dunn v. Doskocz, 590 So. 2d 521 (Fla. 3d DCA 1991). In the clause applying § 222.21 to any proceeding filed on or after October 1, 1987, “any proceeding” means the garnishment proceeding, not the underlying suit. A creditor whose 1987 collection suit predated the statute therefore could not garnish the debtor’s IRAs post-judgment. The statute’s purpose is a broad exemption for retirement plans, so exceptions to it are narrowly limited.

In re Suarez, 127 B.R. 73 (Bankr. S.D. Fla. 1991). A retired surviving spouse with only social security otherwise showed that IRA and Keogh payments were reasonably necessary for her support, and they were exempt under 11 U.S.C. § 522(d)(10)(E) through § 222.201. A bank’s contract-clause attack on applying the 1987 statutes failed: the debtors had renewed the obligation in 1988, after the effective date, and a party has no vested right in a particular remedy.

Bakst v. Marks (In re Marks), 131 B.R. 220 (S.D. Fla. 1991). An obstetrician who liquidated two Keogh accounts a month after a $2,000,000 malpractice judgment and put the entire $201,212.13 into annuities lost them as a fraudulent transfer under the pre-1988 version of Florida’s fraudulent-transfer statute. Section 222.21(2)(a) could not save the accounts, the court refusing to apply a statute effective October 1, 1987 to a 1986 transaction. The Keogh accounts no longer existed by the effective date, and the creditors’ interest had vested before it.

Disability Income Benefits

Florida’s disability-income exemption does not turn on how the benefit is paid: a lump-sum settlement that ends a coverage dispute is exempt like a monthly benefit, and the exemption follows the money into the recipient’s account so long as it is traceable.

Section 222.18 exempts disability income benefits “of whatever form” paid under any life, health, accident, or other insurance policy. Its only exception is a policy “effected for the benefit of such creditor or creditors,” and in bankruptcy a Florida debtor may also claim the federal disability-benefit exemption in 11 U.S.C. § 522(d)(10)(C), which § 222.201 preserves.

Zuckerman v. Hofrichter & Quiat, P.A., 646 So. 2d 187 (Fla. 1994). Leading case. A $75,000 settlement of a coverage dispute over the debtor’s own disability policy, paid for a general release and surrender of the policy, was exempt. The statute’s “of whatever form” language is dispositive, so the exemption turns neither on the form of payment, lump sum or monthly, nor on whether the money is settlement money or ordinary benefits. The Court quashed the Third District’s contrary decision on direct conflict with Bank of Greenwood v. Rawls.

Chesley v. Woodard (In re Chesley), 526 B.R. 888 (M.D. Fla. 2014). Two elements must both be shown: the proceeds must be disability income benefits, and they must be paid under a policy. An unallocated general-release settlement of a personal-injury claim, funded by the tortfeasor’s liability carrier, satisfied neither: the $1.2 million release contained no allocation, and the carrier had never discussed paying disability benefits.

In re Williams, 586 B.R. 355 (Bankr. S.D. Fla. 2018). A former NFL player’s award under the league’s concussion-litigation settlement was an exempt disability benefit under 11 U.S.C. § 522(d)(10)(C), claimable in Florida through § 222.201. The settlement created a new and separate disability policy rather than resolving a tort claim, with eligibility turning on a qualifying medical diagnosis and payment never guaranteed. It met both elements of the Chesley test that the Chesley settlement itself failed.

Parl v. Parl, 699 So. 2d 765 (Fla. 4th DCA 1997). Section 222.18 protects disability benefits in the insured’s or beneficiary’s hands as well as the insurer’s, so benefits deposited in the recipient’s bank account stay exempt to the extent traceable. The court, adopting In re Ryzner, 208 B.R. 568 (Bankr. M.D. Fla. 1997), remanded for an evidentiary hearing on the funds’ source, the writ standing as to non-disability money. The ex-wife held an $85,761.21 alimony judgment, and the court expressly declined to decide whether the exemption applies against alimony or child support.

Matter of Prestien, 427 F. Supp. 1003 (S.D. Fla. 1977). A pre-Code federal trial court read § 222.18 to exempt only benefits not yet paid out, so the bankrupt could not exempt disability payments already deposited in segregated savings accounts. The reading did not survive: it declined to follow Bank of Greenwood v. Rawls, on which the Florida Supreme Court has since relied twice, and Parl is the controlling Florida appellate authority that the exemption follows traceable deposits.

In re Dennison, 84 B.R. 846 (Bankr. S.D. Fla. 1988). A debtor may claim exempt the disability policy itself, not merely the benefits it pays, so the trustee could not compel him to cancel an exempt policy to capture the refund of prepaid premiums.

In re Green, 178 B.R. 533 (Bankr. M.D. Fla. 1995). A $112,500 workers’ compensation settlement was the debtor’s right to receive a disability benefit under 11 U.S.C. § 522(d)(10)(C). Neither depositing it in a bank account nor buying a certificate of deposit divested its exempt character, because the funds were traceable. Commingling a known amount of non-exempt interest did not taint the exempt principal; only the interest was non-exempt.

Life Insurance Cash Value and Proceeds

Florida exempts a life policy’s cash surrender value against the insured’s creditors, and it exempts the death proceeds against those same creditors when a designated beneficiary receives them; proceeds payable to the insured’s estate instead become estate assets. Death proceeds are exempt from the insured’s creditors but not from the creditors of the beneficiary who receives them, and the exemption can be waived (In re Zesbaugh, Bankr. M.D. Fla. 1995; Morey v. Everbank, Fla. 1st DCA 2012).

Under § 222.13(1), proceeds payable to the insured or the insured’s estate, executors, administrators, or assigns “become a part of the insured’s estate for all purposes” and are administered like any other estate asset. Proceeds payable to a designated beneficiary inure exclusively to that beneficiary and are exempt from the insured’s creditors “unless the insurance policy or a valid assignment thereof provides otherwise.”

Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012). The § 222.13(1) exemption can be waived by naming as beneficiary the insured, a creditor, the estate, or a trust whose terms direct distribution to the personal representative on request. Here the beneficiary was the decedent’s revocable trust, whose terms required the trustee to pay the personal representative sums certified as needed for “death obligations,” so the illiquid estate’s creditors took the proceeds. A homestead waiver in an unsecured contract is, by contrast, unenforceable (Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007)).

In re Zesbaugh, 190 B.R. 951 (Bankr. M.D. Fla. 1995). Section 222.14 covers annuities and life insurance cash surrender value and “has nothing to do with the proceeds of life insurance policies,” which § 222.13 governs. Section 222.13 in turn exempts proceeds from the insured’s creditors only, so a widow-beneficiary’s own bankruptcy estate took the $19,000 she received.

In re Williams, 222 B.R. 662 (Bankr. S.D. Fla. 1998). A surviving spouse became entitled to $25,000 of her deceased husband’s life insurance after the petition. She could not exempt it by electing to take the money as an annuity: the election right passed to the trustee, and a debtor cannot make a post-petition election that puts proceeds beyond creditors. The § 222.20 opt-out closed the federal alternative.

Bancroft v. West, 174 So. 327 (Fla. 1937). The insured assigned a policy payable to his executors, administrators or assigns as collateral security, filing the assignment with the insurer under the policy’s own rules. The assignment both transferred the policy and operated as a change of beneficiary, cutting off the statutory heir’s claim. The current § 222.13(1) keeps the same door open, exempting proceeds paid to a designated beneficiary “unless the insurance policy or a valid assignment thereof provides otherwise.”

New York Life Insurance Co. v. Valz, 141 F.2d 1014 (5th Cir. 1944). Section 222.13 is read into every Florida policy payable to the insured’s estate or personal representatives. The statutory power the old text then gave the insured, directing the proceeds by will, was not restricted by technically inharmonious policy language unless both insured and insurer clearly intended the restriction. The taker rules the decision applied belong to the superseded pre-1955 text.

In re Butcher, 62 B.R. 162 (Bankr. E.D. Tenn. 1986), aff’d, 75 B.R. 441 (E.D. Tenn. 1987). A Tennessee bankruptcy court applying Florida exemption law held that a debtor who owned and was beneficiary of policies insuring her husband’s life could not exempt roughly $96,000 of their cash value. Sections 222.13 and 222.14 protect proceeds from the insured’s creditors rather than from the beneficiary’s own. The district court added that the governing exemption law is the law in force on the petition date. The authority is out-of-state and persuasive only.

In re Lowery, 272 B.R. 317 (Bankr. M.D. Fla. 2001). “§ 222.14 only exempts the cash surrender value of life insurance policies of which the debtor is both the owner and the insured,” so policies one spouse owned on the other’s life were not exempt. The Second District adopted the rule in Clampitt v. Wick, 320 So. 3d 826, 830–31 (Fla. 2d DCA 2021), citing Lowery, and it means cross-ownership, each spouse owning a policy on the other’s life, forfeits the cash-value exemption.

Clampitt v. Wick, 320 So. 3d 826 (Fla. 2d DCA 2021). The debtor’s policy on his own life was generally exempt under § 222.14, because he was both owner and insured; the cash surrender values of four policies insuring his children were not, because the owner and the insureds were different. A footnote leaves one route open: the exempt policy is still reachable if the debtor converted it into exempt form intending to hinder, delay, or defraud the creditor, § 222.30(2), (3). The summary judgment against the exemption was reversed.

Marshall v. Bacon, 97 So. 2d 252 (Fla. 1957). Residency is tested when the exemption is claimed and the property is sought to be subjected to legal process, not at issuance. The husband was a Florida resident when the policies issued but a California resident when he claimed, and he lost. The claim was for delinquent alimony and child support, and the Court decided on residency without reaching whether support claims are an exception.

Plymouth Cordage Co. v. Ward, 202 So. 2d 600 (Fla. 1st DCA 1967). A creditor cannot garnish the net cash surrender value of a life policy before the insured exercises the surrender option, because until then there is no indebtedness due to the insured. The ground is garnishment mechanics rather than the exemption: the debtor was a California resident whom § 222.14 did not reach, and he defeated the writ anyway.

Technical Chemicals & Products, Inc. v. Porchester Holdings, Inc., 785 So. 2d 636 (Fla. 4th DCA 2001). The cash surrender value of two whole life policies was exempt from garnishment in the insurer’s hands. The statute protects the value “upon whatever form,” so the insured’s request for the value as a $100,000 policy loan did not change that. Because the insurer stopped payment and the insured never received the money, the court expressly declined to decide whether the creditor could reach the funds once he did.

Faro v. Porchester Holdings, Inc., 792 So. 2d 1262 (Fla. 4th DCA 2001). The § 222.14 exemption follows a life policy’s cash surrender value into a bank certificate of deposit bought with it, so the withdrawn value stays exempt and the garnishment writs could not stand. The money went straight into an identifiable CD, and the decision says nothing about commingling.

United States v. Gilmore, 222 F.2d 167 (5th Cir. 1955). Section 222.13 yields to controlling federal tax statutes. The executor’s right to force a life insurance beneficiary to contribute toward the estate tax attributable to the proceeds was an estate asset. The widow, who instead exhausted the estate’s other assets on the estate tax, remained liable for the decedent’s unpaid income taxes.

Miami Beach First National Bank v. Horner, 188 So. 2d 386 (Fla. 3d DCA 1966). The insured left no surviving spouse or child and never mentioned insurance in his will. Under the 1963 text of § 222.13(2), the estate-payable proceeds were estate assets, available for debts and administration expenses. On its narrow facts the decision reached the result the current statute now reaches for every estate-payable policy.

In re D. F. & C. P. Long, 282 F. 383 (S.D. Fla. 1918). A bankrupt could not exempt a life policy’s $400 cash surrender value under § 3154 of the General Statutes, the predecessor of § 222.13. That section governs the disposition of proceeds after the insured’s death and is not an exemption the bankruptcy court enforces, so the referee’s order requiring payment of the surrender value stood. The decision construes the pre-1955 regime; Florida’s exemption for cash surrender value is § 222.14.

The historic § 222.13 decisions. Before the 1955 amendments, section 222.13 did more than exempt: it directed who took life insurance proceeds payable to the insured’s estate, keeping them from the insured’s creditors and letting the insured bequeath them like any other personal property. The current subsection (1) reverses that branch and makes estate-payable proceeds part of the insured’s estate for all purposes.

Florida’s appellate courts applied the old regime, and the transitional text the 1955 and 1959 amendments produced, for decades. Representative decisions include Sloan v. Sloan, 74 So. 407 (Fla. 1917), and Carter v. Carter, 88 So. 2d 153 (Fla. 1956). Later transitional-text decisions include In re Estate of Alworth, 151 So. 2d 478 (Fla. 1st DCA 1963), and In re Estate of Hunt, 222 So. 2d 272 (Fla. 3d DCA 1969).

The $1,000 Personal Property Exemption

The Florida Constitution exempts $1,000 of a natural person’s personal property from creditors, and Florida courts have applied it to bank deposits, choses in action, and property a landlord’s lien does not reach.

Section 222.061 sets the method for claiming it. The debtor files an inventory and affidavit with the issuing court within 15 days after a levy. A creditor who does not object within 5 days is deemed to have admitted it. That section replaced § 222.06, which had the sheriff summon appraisers, so decisions applying the older procedure state what the exemption covers rather than how a debtor claims it today.

In re Kelsey, 224 B.R. 495 (Bankr. M.D. Fla. 1998). The exemption covers intangible personal property and choses in action, the constitutional language carrying no exclusion for either, so a debtor may claim a pending class-action claim as exempt up to the limit. Value above $1,000 remains property of the estate.

Tracy v. Lucik, 138 Fla. 188, 189 So. 430 (Fla. 1939). A judgment debtor may claim the exemption in a chose in action, here his deposit balance at a garnishee bank, so long as the bank has not parted with the money. The court may cancel a cashier’s check already issued to the judgment creditor and decree that the credit belongs to the debtor. The exemption cannot be lost by estoppel, by parol declarations, or by “mere negative silence, or failure to act.”

West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220 (Fla. 1917). The exemption reaches any judicial proceeding that seeks to apply the property to pay debts, at law or in equity, not only formal execution process. An insured could therefore claim up to $1,000 out of the residue of an interpleaded insurance fund.

Hodges v. Cooksey, 33 Fla. 715, 15 So. 549 (Fla. 1894). A tenant may claim the exemption in the property he keeps on rented land, though not in the crops raised there, whose title is subordinate to the landlord’s statutory lien. A distress warrant is process of law, and signing a lease does not by itself waive the exemption. The tenant prevailed under the 1868 constitution.

In re David, 54 F.2d 140 (S.D. Fla. 1931). Partners who divided the partnership’s goods, each assuming a stated share of its $20,000 in debts, thereby contracted an obligation for the purchase price of what each took, so neither could exempt those goods. The bankruptcy trustee, standing in the individual bankrupts’ shoes, could assert the unpaid purchase-money obligations and defeat the claimed exemptions.

In re Estate of Livingston, 161 So. 2d 723 (Fla. 2d DCA 1964). Funeral expenses cannot be charged against or paid from exempt personal property. Once an estate’s assets above the exempt $1,000 have gone to higher-priority expenditures, the judge orders what remains distributed to the persons entitled and discharges the personal representative. The probate priority and distribution statutes the court applied have since been replaced.

Claiming the Exemption and Proving It

A debtor claims the exemption by inventory and affidavit, and the party objecting to it carries the burden of showing that the property is not exempt.

Loring v. Wittich, 16 Fla. 498 (Fla. 1878). The claimant’s only oath is that his inventory “contains a true and perfect list of all his personal property,” and the sheriff has no judicial power to weigh evidence about the right to claim an exemption. A claimant whose property the sheriff refuses to release may test title and the exemption by replevin. The court declined to decide what constitutes a family.

Christopher v. Bowden, 17 Fla. 603 (Fla. 1880). Chancery has no jurisdiction over a bill to enjoin a debtor from claiming the exemption in levied personalty. The right of possession is triable at law, and appraising and selecting the property does not settle whether it remains liable to levy and sale.

State ex rel. Peck v. Bowden, 18 Fla. 17 (Fla. 1881). Mandamus is the route to compel a sheriff to appoint appraisers so the debtor can make a selection, but it will not lie once the sheriff has sold and delivered the property. The court added, calling the point unnecessary, that a partner cannot claim the exemption out of partnership assets seized for his individual debt. The relator must also show himself “the head of a family residing in this State.”

In re Rippa, 180 F. 603 (S.D. Fla. 1909). The objector must “show affirmatively that he is not entitled to claim the property as exempt,” because property claimed as exempt is presumed to have been paid for. A bankrupt’s sworn schedule takes the place of pointing property out to the sheriff, and a pleading that contests a fact must be verified. The court refused to treat a stock of goods mixing paid-for and unpaid-for items as a single unit, saying that approach “simply tends to completely defeat the homestead laws.”

In re Leucht, 221 B.R. 1009 (Bankr. M.D. Fla. 1998). The objector carries the Bankruptcy Rule 4003(c) burden on the constitutional exemption, and an estranged spouse who offered no evidence disputing the debtor’s valuations did not meet it. Once property is exempted, the bankruptcy court does not go on to decide what interest a third party owns in it.

Concealed Property and the Charging Rule

Property a debtor conceals is treated as the exemption he selected for as long as it stays concealed, so hiding assets spends the exemption instead of adding to it.

Florida Loan & Trust Co. v. Crabb, 45 Fla. 306 (Fla. 1903). A debtor who conceals or removes part of his personal property before claiming the exemption is “held to have selected such concealed or removed property pro tanto as his exemption” while it remains concealed. A debtor may select the property that is least encumbered, but cannot exempt enough to prefer and satisfy purchase-money creditors and keep his full exemption besides.

Shollar Crate & Box Co. v. Passmore, 148 Fla. 466, 4 So. 2d 530 (Fla. 1941). The limit on the charging rule: Crabb “is applicable only when there is a secreting of assets which remain concealed,” and no fraud was charged or proved here. The exemption is also constant rather than fixed on the date the inventory is filed, because “there must be more than one thousand dollars worth of personal property before an execution reaches anything.” The debtor prevailed.

In re Libby, 253 F. 278 (S.D. Fla. 1918), aff’d sub nom. Libby v. Beverly, 263 F. 63 (5th Cir. 1920). A preferential payment to the bankrupt’s wife supports an equal charge against his exemption only if he concealed it so as to endanger the trustee’s recovery. Concealment was inferred here from books that omitted the payment and an appraisal far below the stock’s real value. An unlawful preference “alone would not justify a charge against the bankrupt’s exemption in equal amount.”

Sultan v. United States, 249 F.2d 385 (5th Cir. 1957). A debtor cannot claim the exemption by secreting goods and never scheduling them in the bankruptcy court. Concealing a bankrupt’s assets is a continuing offense until discharge is granted or denied, so acts before and after the petition can form a single conspiracy. The conviction was affirmed.

In re Allen, 254 B.R. 497 (Bankr. M.D. Fla. 2000). Stock pledged as collateral cannot be valued at nothing, because collateral securing a debt is worth at least the debt. The stock secured $300.67, more than the $206 the debtor had left of his $1,000 exemption, so the excess belonged to the estate. It is neither the annuity-beneficiary decision at 203 B.R. 786 nor the schedule-amendment decision at 454 B.R. 894.

Support Judgments and State Setoff

Neither a money judgment for child-support arrearages nor the State’s right of setoff overrides a debtor’s constitutional exemption in personal property.

Graham v. Azar, 204 So. 2d 193 (Fla. 1967), approving Azar v. Graham, 194 So. 2d 684 (Fla. 3d DCA 1967). A remarried former husband who heads a new family may claim the exemption against a child-support arrearage judgment. The constitutional exclusions are enumerated, and a support judgment is not among them, though the arrearages stay enforceable by contempt. The exemption is construed liberally and its exceptions strictly. Anderson v. Anderson, 44 So. 2d 652 (Fla. 1950), was distinguished: that husband had not remarried and was no longer the head of a family.

Costa v. Costa, 285 So. 2d 665 (Fla. 3d DCA 1973). Section 61.12 lets a creditor garnish to enforce an alimony or support order despite exemptions, but it does not reach a money judgment entered for nonpayment. A head-of-family husband who filed an affidavit of exemption listing his bank account should have had the writ of garnishment dissolved.

Lotti v. Unemployment Appeals Commission, 699 So. 2d 863 (Fla. 5th DCA 1997). A debtor’s exemption defeats the State’s right of setoff, the State standing in no different position from a private creditor. The claimant filed an inventory and affidavit against a state refund the agency wanted to apply to a larger obligation it said he owed, and the court held that calling the seizure an offset rather than a levy changed nothing.

The Wildcard and Vehicle Exemptions

Florida’s $4,000 personal-property wildcard is available only to a debtor who does not claim or receive the homestead exemption’s benefits, and the Florida Supreme Court has held that those benefits mean creditor protection alone, with no abandonment of the home required. Florida’s personal-property exemptions are cumulative unless a statute or the constitution says otherwise: a debtor claims each on top of the others, so the constitutional exemption, the wildcard, and the vehicle exemption each stand alone (In re Mootosammy, Bankr. M.D. Fla. 2008).

Section 222.25 exempts a debtor’s interest up to $5,000 in a single motor vehicle and any professionally prescribed health aid for the debtor or a dependent. It also exempts an IRC § 32 earned-income-credit refund or credit, with its traceable deposits, and $4,000 of personal property for a debtor who does not claim or receive the benefits of the article X homestead exemption. Neither of the last two applies against a claim for child or spousal support.

Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011). Leading case. The “benefits” of the homestead exemption under § 222.25(4) are only the homestead’s protection from creditors, so a bankruptcy debtor who does not claim the homestead, leaving administration unobstructed, does not receive them and may take the wildcard. No actual abandonment or expressed intent to abandon is required, which settled a division among Florida’s bankruptcy courts over debtors who stayed in the home (In re Abbott, Bankr. S.D. Fla. 2009, collecting both sides).

In re Valone, 784 F.3d 1398 (11th Cir. 2015). A Chapter 13 filing by a Florida homeowner does not foreclose the wildcard, because disqualification requires that the homestead exemption itself, even indirectly, protect the home. Protection from another source, such as the automatic stay, is not enough, and the court repeated Osborne‘s example of a disqualifying indirect benefit: a non-filing spouse’s homestead rights that block administration of entireties property.

In re Im, 495 B.R. 46 (Bankr. M.D. Fla. 2013). The debtor and his wife were the sole settlors, trustees, and beneficiaries of a revocable trust that owned their home, and that interest sufficed to “claim or receive the benefit” of the homestead exemption. The wildcard was unavailable even though he did not claim the residence as exempt on his schedules; fee simple is not required, a legal or equitable right to use and possess the home sufficing.

In re Mootosammy, 387 B.R. 291 (Bankr. M.D. Fla. 2008). Failing to file the § 222.061 inventory and affidavit within 15 days of a levy does not waive the exemption in a later bankruptcy, because federal law preempts the state procedure once a bankruptcy is filed.

In re Dowell, 456 B.R. 578 (Bankr. M.D. Fla. 2011). A “spinner” knob prescribed for the steering wheel is a professionally prescribed health aid under § 222.25(2), but attaching it does not make the whole vehicle one; only the modification is exempt. The vehicle exemption covers the transportation need, and a prescription written seven weeks before the petition, after a bankruptcy-planning appraisal, was not disqualifying, the statute setting no timing rule. A van converted and specifically designed for a wheelchair-restricted debtor was exempt in In re Allard, 342 B.R. 102 (Bankr. M.D. Fla. 2005).

In re Kirby, 223 B.R. 825 (Bankr. M.D. Fla. 1998). A $160,000 motor coach the debtors used as their residence, built out for a permanent physical disability under a physician’s prescription, was not a professionally prescribed health aid. The coach was not “uniquely suited and principally used for the diagnosis, cure, mitigation, treatment or prevention of disease.” The hinge is principal use: Allard‘s converted van principally served transport for the disability, while the coach principally served as living quarters.

In re Sanderson, 283 B.R. 595 (Bankr. M.D. Fla. 2002). Section 222.25(3) exempts the earned income credit and nothing more, so two ordinary income-tax refunds with no earned-income-credit component were subject to administration. The court read the statute against its stated purpose of protecting the credit of eligible low-income workers, received or commingled, so long as traceable.

In re Dupree, 619 B.R. 516 (Bankr. M.D. Fla. 2020). A $471 child tax credit is not exempt. Section 222.25(3) exempts a credit received under § 32 of the Internal Revenue Code, which is the earned income credit. The child tax credit comes from § 24, and their only connection is that § 24 borrows § 32’s definition of earned income to compute the refundable part. The court receded from the contrary dictum in its own earlier In re Kokin order.

In re Wallace, 191 B.R. 929 (Bankr. M.D. Fla. 1996). A debtor’s exemptions may be charged with property he conceals or withholds, the concealment being treated as a selection pro tanto of his exemptions, and intent is inferred from the conduct. Unaccounted-for antique-sale proceeds of at least $10,000 and $3,000 from a Jaguar sale exhausted both the personal-property and vehicle exemptions, but the court refused to charge the disclosed homestead. The rule is the common-law charging doctrine rather than § 222.29.

Mazon v. Tardif (In re Mazon), 395 B.R. 742 (M.D. Fla. 2008). The district court held that a bankruptcy court has no authority, under 11 U.S.C. § 105(a) or its inherent powers, to surcharge a debtor’s exempt assets, even where the debtor concealed and then dissipated non-exempt property. The Bankruptcy Code’s own remedies, including the revocation of discharge that followed, are what Congress supplied; the reversal of the bankruptcy-court surcharge limits the charging doctrine Wallace applied.

What Counts as Receiving Homestead Benefits

The only benefit that disqualifies a debtor from the wildcard is the constitutional protection of the home from creditors, and a debtor who leaves the home available to the trustee does not receive it.

Osborne v. Smith, 398 B.R. 355 (S.D. Fla. 2008). On de novo review, the district court held that a debtor does not receive the benefits of the homestead exemption merely because he once owned homestead property. Declining to follow In re Franzese, it adopted the narrower reading three years before the Florida Supreme Court did. The debtor had stated an intention to surrender and moved out, and his non-filing wife, who moved out with him and never contested the foreclosure, never invoked her homestead protection.

In re Bennett, 395 B.R. 781 (Bankr. M.D. Fla. 2008). This is the decision Osborne v. Dumoulin adopted as correctly concluded. Surrender of the home is not a condition of the wildcard: a debtor who simply does not claim the homestead leaves it available for the trustee to administer, and the trustee need not actually administer it. The constitutional exemption confers exactly one benefit, shielding the home from forced sale; the tax exemption and the general advantages of home ownership are irrelevant. The court expressly declined to decide the entireties question Watford later answered.

In re Gatto, 380 B.R. 88 (Bankr. M.D. Fla. 2007). “Receive the benefits” reaches only benefits derived from the constitutional protection against creditors, so accruing equity, the mortgage-interest deduction, and the homestead tax exemption do not disqualify. The decision is the origin of the indirect-benefit example the Florida Supreme Court later endorsed: a non-filing wife who retains homestead rights. It also held that the wildcard stacks on the constitutional personal-property exemption and that each debtor in a joint case claims both.

In re Franzese, 383 B.R. 197 (Bankr. M.D. Fla. 2008). The losing side of the resolved question: it read “receives the benefits” to cover any debtor who owns the home, lives in it, and plans to remain, whether or not he claims the exemption. Osborne v. Smith declined to follow it, and Osborne v. Dumoulin named it among the decisions whose reasoning it rejected, so the broad rule is superseded. What survives is its result on its facts: an entireties home with a non-filing spouse who retained her homestead rights.

In re Rogers, 396 B.R. 100 (Bankr. M.D. Fla. 2008), and In re Archer, 416 B.R. 900 (Bankr. S.D. Fla. 2009). Both decisions are on the losing side of the resolved question. Debtors who left the home off Schedule C, declared an intention to reaffirm both mortgages, and kept living there were “receiving the benefits of a homestead exemption” and could not take the wildcard. Archer read the phrase to mean the legal right the constitution confers “regardless of whether the owner actually relies on the privilege,” which Osborne v. Dumoulin rejected.

In re Ellis, 395 B.R. 751 (Bankr. M.D. Fla. 2008). A debtor who claimed his home as entireties property with a non-filing spouse who had not waived her homestead rights received the exemption’s benefit through her ability to assert it, and could not take the wildcard. The decision’s further requirement of a clear showing of intent to abandon did not survive Osborne v. Dumoulin, which held that no abandonment is required. A companion order, In re Patton, 395 B.R. 769 (Bankr. M.D. Fla. 2008), applied the same factors and allowed a surrendering debtor the wildcard.

In re Scott, 638 B.R. 658 (Bankr. S.D. Fla. 2022). The § 222.05 exemption for a dwelling on land the claimant does not own, including a mobile home, is a statutory exemption separate from the constitutional homestead. Section 222.25(4) bars the $4,000 wildcard only where the debtor claims or receives the benefits of a homestead exemption under article X, section 4, so a debtor who claimed only the mobile-home exemption kept both. The court adopted In re Lisowski and In re Heckman in full and denied the trustee’s turnover motion.

Homes Owned by a Spouse

A debtor who owns no interest in the home receives nothing from a spouse’s homestead exemption, but a debtor holding the home by the entireties with a still-eligible spouse receives the protection indirectly and loses the wildcard.

In re Watford, 427 B.R. 552 (Bankr. S.D. Fla. 2010). Leading case. A debtor who holds the homestead by the entireties with a non-filing spouse himself eligible for the homestead exemption indirectly obtains the constitutional protection; the wildcard is unavailable. The trustee cannot administer the property even for the couple’s joint creditors. Adopting the narrow reading of “benefits” does not end the case; the court must still ask whether the debtor achieved the homestead’s protection by some route other than claiming it.

In re Barandiaran, 477 B.R. 842 (Bankr. M.D. Fla. 2012). A married debtor who exempts the marital home as entireties property under 11 U.S.C. § 522(b)(3)(B) still receives the constitutional protection, through the non-filing spouse’s power to prevent a forced sale, and may not also claim the wildcard. The outcome flips if that spouse waives the homestead protection. The court followed Watford and read Osborne v. Dumoulin as casting doubt on, if not implicitly overruling, In re Fyock, 391 B.R. 882 (Bankr. M.D. Fla. 2008), which had treated the two exemptions as independent.

In re Fitzpatrick, 521 B.R. 698 (Bankr. M.D. Fla. 2014). The waiver route out of the entireties bar: where the non-filing husband formally waived his Florida homestead rights, the exemption no longer obstructed the trustee’s administration of the entireties home, and the debtor could claim the wildcard. Her stated intention to keep the house and reaffirm the mortgage was immaterial, a statement of intention neither determining what is estate property nor affecting its administration.

In re Orozco, 444 B.R. 472 (Bankr. S.D. Fla. 2011). A divorced debtor receives no indirect homestead benefit through an ex-husband, because only married persons can hold by the entireties. The objector opposing a debtor’s amended claim must prove prejudice, concealment, or bad faith by clear and convincing evidence, and conduct that “may certainly raise eyebrows” does not meet the standard. The debtor also stacked the wildcard on the constitutional personal-property exemption, for $5,000.

In re Walton, 503 B.R. 159 (Bankr. S.D. Fla. 2013). In a joint filing the wife claimed the homestead on a house she had owned outright since before the marriage, and the husband could claim the wildcard. He had no present ownership interest, the house was not held by the entireties, and the joint creditors lost no protection they would otherwise have had. The court stated the line expressly: had the house been held by the entireties, the outcome would have been different.

In re Sanon, 403 B.R. 737 (Bankr. M.D. Fla. 2009). A debtor who lives in a home his non-filing spouse owns in fee simple, holding no legal or equitable interest of his own, does not receive the homestead exemption’s benefits and may claim the wildcard. The trustee’s theory that the constitutional restraint on devise gave the debtor a disqualifying benefit was rejected as speculation about a contingency that had not occurred. The debtor took $5,000, the $1,000 constitutional personal-property exemption plus the $4,000 wildcard.

Underwater Homes and Staying Put

A debtor who has no home equity and means to keep the house and reaffirm the mortgage may still take the wildcard; eligibility turns on whether the homestead exemption itself protects the home, not on the debtor’s plans.

In re Rodale, 452 B.R. 290 (Bankr. M.D. Fla. 2011). The post-Osborne answer for the retain-and-reaffirm debtor: a trustee’s decision not to administer a no-equity home is not a benefit of the exemption. An intent to retain and reaffirm does not disqualify either, because Osborne‘s reasoning does not turn on what the debtor plans to do with the house. Debtors seeking a loan modification on a home worth $219,384 against $289,395 in mortgages kept their wildcard claims.

In re Abbott, 408 B.R. 903 (Bankr. S.D. Fla. 2009). The debtors’ home was worth $113,000 against a $177,071 mortgage; they did not claim the homestead and intended to stay and reaffirm, and they could take the wildcard. The statute is written in the present tense, eligibility is fixed on the petition date, and future equity and future creditors are irrelevant. Surrender is not a prerequisite; it is enough that the unclaimed home remains available for the trustee.

In re Iuliano, 457 B.R. 124 (Bankr. M.D. Fla. 2010). Five weeks before Osborne v. Dumoulin, the court allowed the wildcard to no-equity debtors who meant to retain and reaffirm, reasoning that, having nothing to shield, they received no present benefit. The result stands under Osborne‘s test, but the no-equity rationale did not survive it: Osborne held that whether a debtor has equity has no relevance.

Timing and Amendments

Wildcard eligibility is measured on the petition date, but a debtor may amend the exemption schedules at any time before the case closes, absent bad faith or prejudice to creditors.

In re Morales, 381 B.R. 917 (Bankr. S.D. Fla. 2008). Its two branches fared differently. The present-tense reading, under which past receipt of homestead benefits does not disqualify, was adopted by the Florida Supreme Court in Osborne v. Dumoulin. The further requirement of a timely, clear statement of intent to surrender was rejected in Bennett, which Osborne adopted. The debtor there lost on statements of intention that shifted over five months.

In re Guididas, 393 B.R. 251 (Bankr. M.D. Fla. 2008). The court fixed wildcard entitlement by the original schedules and refused to let a debtor cure by amending three times, the first amendment coming only after discharge and a turnover motion. The timing bar did not survive Bennett and Osborne v. Dumoulin; what survives is that eligibility is measured on the petition date and that a bad-faith or prejudicial amendment may be refused. Osborne v. Smith called it an extreme case.

In re Allen, 454 B.R. 894 (Bankr. S.D. Fla. 2011). The passing of the objection deadline does not lock a debtor into the homestead election: debtors who had claimed a deeply mortgaged home as exempt homestead could amend months later to delete the claim and take wildcard exemptions instead. A debtor may amend as a matter of course at any time before the case closes, and denial requires bad faith or creditor prejudice, which the trustee did not allege.

In re Wilson, 446 B.R. 555 (Bankr. M.D. Fla. 2011). The limit on late amendments: the wildcard must be claimed explicitly. A debtor who listed the home as exempt homestead, at a claimed value of zero, did not implicitly elect the wildcard; a claimed exemption cannot be contradicted by the debtor’s other claimed exemptions. His amendment came only after the objection was sustained, a turnover order entered, and a motion to compel filed; it prejudiced creditors, and the final turnover order was res judicata.

Stacking the Personal-Property Exemptions

Florida’s personal-property exemptions apply on top of one another, so a debtor may claim the constitutional, wildcard, and vehicle exemptions toward the same property.

In re Bezares, 377 B.R. 413 (Bankr. M.D. Fla. 2007), aff’d on reh’g, 383 B.R. 796 (Bankr. M.D. Fla. 2007). The $4,000 wildcard is cumulative with, and in excess of, the $1,000 constitutional personal property exemption; reading the $4,000 as a cap that included the $1,000 would let a statute amend the Constitution, which only article XI, section 5 permits. A debtor without homestead benefits claims $5,000.

In re Rutter, 247 B.R. 334 (Bankr. M.D. Fla. 2000). The motor-vehicle exemption and the constitutional personal-property exemption are not mutually exclusive. A debtor may claim the statutory amount on his vehicle and apply the constitutional exemption to the same vehicle’s remaining equity. The statute was enacted to exempt vehicle equity, not to strip a constitutionally provided exemption.

In re Hafner, 383 B.R. 350 (Bankr. N.D. Fla. 2008). A debtor may stack the § 222.25(1) vehicle exemption with the § 222.25(4) wildcard toward a single motor vehicle. Subsection (1)’s cap limits only exemptions claimed under that subsection, subsection (4) nowhere excludes vehicles, and ambiguity in a Florida exemption statute is resolved in the debtor’s favor.

In re Failla, 838 F.3d 1170 (11th Cir. 2016). Leading case. The price of the wildcard election: debtors who swore in a statement of intention to surrender a house worth less than its mortgage, and thereby took the wildcard, could not keep defending the state-court foreclosure. “Surrender” means giving up the right to possess, first to the trustee and then to the lienholder, and debtors who surrender “must get out of the creditor’s way,” the court wrote. The bankruptcy court had authority under 11 U.S.C. § 105(a) to order the foreclosure defenses withdrawn.

Florida’s Bankruptcy Opt-Out

Florida has opted out of the federal bankruptcy exemption list, so a Florida debtor claims the exemptions Florida law provides, except that Florida’s own statute keeps the benefits listed in 11 U.S.C. § 522(d)(10) available, and the opt-out reaches only residents. In bankruptcy, the party objecting to a Florida debtor’s claimed exemption bears the burden of proving it is not properly claimed (Bankruptcy Rule 4003(c); Yerian, 11th Cir. 2019; Mootosammy, Bankr. M.D. Fla. 2008; Dowell, Bankr. M.D. Fla. 2011).

Section 222.20 provides that Florida residents are not entitled to the federal exemptions in 11 U.S.C. § 522(d). Section 222.201 provides that, notwithstanding § 222.20, a debtor may also exempt anything listed in § 522(d)(10): social security and other public benefits, disability benefits, alimony and support to the extent reasonably necessary, and pension and annuity payments within that paragraph’s limits. Section 522(b)(3)(A) applies the exemption law of the debtor’s domicile during the 730 days before filing, and a debtor whom that rule leaves with no exemption may elect the federal list.

In re Arispe, 289 B.R. 245 (Bankr. S.D. Fla. 2002). A non-immigrant alien living and owning property here but domiciled in no state was not reached by § 222.20, which speaks to “residents,” and could claim the federal exemptions. The court applied the former 180-day domicile rule; today’s 730-day rule and savings clause are the operative provisions. The trustee’s reading, the court said, would have left him “a ‘naked debtor’ without the right to even exempt the clothes on his back.”

In re Schulz, 101 B.R. 301 (Bankr. N.D. Fla. 1989). Section 222.20 reaches only “residents,” so a debtor who had moved to Wisconsin a month before filing, though required to file in Florida’s Northern District, could claim the federal exemptions. He could not claim Florida’s exemptions, which are available only to residents. The court applied the former 180-day domicile rule; the 730-day rule and its savings clause are today’s provisions.

In re Cauley, 374 B.R. 311 (Bankr. M.D. Fla. 2007). A tenancy by the entirety is a creature of Florida common law, not an exemption “given … by the Florida constitution or the Florida Statutes” that § 222.20 addresses. Section 222.20 therefore does not reach entireties property, and a non-resident may claim Florida property exempt as entireties under 11 U.S.C. § 522(b)(3)(B), a route open to every debtor independently of the state-law track.

In re Rasmussen, 349 B.R. 747 (Bankr. M.D. Fla. 2006). Florida debtors face the § 522(p) cap on homestead equity acquired within 1,215 days of filing, even though they have no state-versus-federal election. The cap applies separately to each joint debtor under § 522(m), and Florida gives each spouse a homestead exemption. Passive market appreciation is not an interest “acquired by the debtor,” and intent is irrelevant under § 522(p), § 522(o) being the intent provision.

Hoffman v. Signature Bank of Georgia (In re Hoffman), 22 F.4th 1341 (11th Cir. 2022). Bankruptcy Code § 541(c)(2) excludes property from the estate when the debtor holds a beneficial interest in a trust and a restriction on transferring that interest is enforceable under state or federal law. A Georgia debtor’s Roth IRAs met the test because Georgia’s garnishment statute exempts funds in any individual retirement account. Exclusion is separate from the § 522 exemption a Florida debtor claims under § 222.21, and the decision construes Georgia’s statute only.

Patterson v. Shumate, 504 U.S. 753 (1992). Leading case. “Applicable nonbankruptcy law” in Bankruptcy Code § 541(c)(2) includes federal law, so the anti-alienation provision ERISA requires in every pension plan excludes a participant’s plan interest from the bankruptcy estate. IRAs are excepted from ERISA’s anti-alienation requirement and depend on state exemptions instead.

In re Bryan, 106 B.R. 749 (Bankr. S.D. Fla. 1989). A state’s opt-out under 11 U.S.C. § 522(b) is not inconsistent with incorporating a federal exemption into state law, so § 222.201’s partial opt-in is valid. The trustee’s argument that a state must opt out entirely or take the federal list wholesale had no merit, and the decision also upheld §§ 222.21 and 222.201 against constitutional attack.

In re Haning, 252 B.R. 799 (Bankr. M.D. Fla. 2000). Florida citizens take only the exemptions Florida law allows. Bankruptcy Rule 4003(c) makes the objector prove by a preponderance that the debtor is not entitled to the claimed exemption, and exceptions to an exemption are strictly construed against the challenger.

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992). Leading case. A trustee or creditor who does not object to a claimed exemption within Rule 4003(b)’s 30-day deadline cannot contest it later, even if the debtor had no colorable basis for the claim.

Schwab v. Reilly, 560 U.S. 770 (2010). Where a debtor’s schedule describes the asset accurately and claims a dollar figure within the Code’s limits, the property claimed as exempt is an interest up to that amount rather than the asset itself. Taylor‘s 30-day bar therefore reaches only the declared figure, and no objection is needed to keep the estate’s claim to value above it. Reilly declared $10,718 against kitchen equipment later appraised at $17,200, and the trustee kept the difference though he never objected. The Supreme Court reversed the Third Circuit and remanded.

Law v. Siegel, 571 U.S. 415 (2014). A bankruptcy court may not order a debtor’s exempt property used to pay administrative expenses the Code says it is not liable for, whatever the debtor’s fraud. Law’s fabricated second lien cost the trustee more than $500,000 in fees to expose, and the bankruptcy court surcharged his entire $75,000 California homestead exemption to defray them. Section 105(a) and a court’s inherent powers cannot override an express provision such as section 522(k). The Supreme Court reversed the Ninth Circuit and remanded, and the trustee bore the cost.

Cole v. PRN Real Estate & Investments, Ltd., 829 F. App’x 399 (11th Cir. 2020) (unpublished). Statements in sworn bankruptcy schedules can be treated as judicial admissions, and a fact so admitted is established beyond the power of evidence to controvert. A debtor who swore that his trust owned a submerged parcel could not argue at trial that the State of Florida owned it, and the bankruptcy court properly declined to decide ownership.

In re Benjamin, 136 B.R. 574 (Bankr. S.D. Fla. 1992). The label a state divorce court puts on an award does not control in bankruptcy: a $590,000 award styled lump-sum alimony was in substance a property settlement and fell outside 11 U.S.C. § 522(d)(10)(D), which § 222.201 makes available to Florida debtors. The wife had waived need-based alimony, the award terminated on neither remarriage nor death, and child support had been awarded separately.

In re Coltellaro, 204 B.R. 640 (Bankr. S.D. Fla. 1997). A seaman’s pending maintenance-and-cure claim is fully exempt under 11 U.S.C. § 522(d)(10)(C) and (D) through § 222.201, because maintenance and cure does not turn on the shipowner’s fault and cannot be waived. Damages for Jones Act negligence and unseaworthiness are not exempt, and any professionally prescribed health aid the recovery produces is exempt under § 222.25(2).

Matter of Wilson, 694 F.2d 236 (11th Cir. 1982). Attorney’s fees a bankruptcy court ordered refunded as excessive enter the estate under 11 U.S.C. § 541(a)(7) and may be claimed exempt: § 522(b) contains no timing limitation barring the exemption of property that becomes estate property after the case commences.

Social Security Benefits

Federal law bars legal process against Social Security benefits. The Eleventh Circuit has read an exception into 42 U.S.C. § 407 for accumulated benefits the recipient does not need, and two Florida bankruptcy courts have applied it to banked benefits.

Citronelle-Mobile Gathering, Inc. v. Watkins, 934 F.2d 1180 (11th Cir. 1991). Leading case. A creditor may reach Social Security benefits when doing so will not impair the recipient’s ability to meet basic needs. On that test, a judgment debtor who controlled more than $10 million in corporate assets could not shield $2,826 of banked benefits.

Applying that test, In re Crandall, 200 B.R. 243 (Bankr. M.D. Fla. 1995), exempted $5,000 of roughly $10,000 in accumulated disability benefits and gave the rest to the trustee. In re Lazin, 217 B.R. 332 (Bankr. M.D. Fla. 1998), denied the trustee summary judgment and set the needs question for an evidentiary hearing. Courts outside the circuit read the statute as absolute, and In re Franklin, 506 B.R. 765 (Bankr. C.D. Ill. 2014), treats the exception as abrogated by Law v. Siegel; the Eleventh Circuit has not revisited it.

In re Pomar, 234 B.R. 135 (Bankr. M.D. Fla. 1993). Section 222.201 incorporates only 11 U.S.C. § 522(d)(10), which exempts the right to receive future payments, not benefits already received; Florida did not adopt § 522(d)(11), which reaches traceable property already received. Of $1,911.77 in a checking account, only the part traceable to social security could be exempt, through the federal anti-attachment statute, and not the part representing retirement payments.

Matter of Rettemnier, 113 B.R. 757 (Bankr. S.D. Fla. 1990). A post-judgment writ of garnishment served on a bank is “legal process” and therefore a judicial lien. The lien fixed on a joint account holding Social Security disability benefits and exempt annuity payments impaired the exemptions, so it was avoided in full under 11 U.S.C. § 522(f)(1) and the garnished money ordered released.

Wages and the Head-of-Family Exemption

Florida’s wage exemption, § 222.11, protects a head of family’s disposable earnings against garnishment. The decisions applying it, including those about business owners whose own entities pay them and about wages deposited in a bank account, are collected on the garnishment case-law page.

The constitutional homestead exemption that sits beside these statutes is covered on the Florida homestead law pages, and planning guidance on holding each exempt asset is on our exemption strategy pages.