H. B. 3206
(By Delegates Manchin and Caputo)
[Introduced February 22, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §38-10-4 of the Code of West Virginia,
1931, as amended, relating to modifying exemptions allowed in
bankruptcy proceedings.
Be it enacted by the Legislature of West Virginia:
That §38-10-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings.
Pursuant to the provisions of 11 U.S.C. §522(b)(1), this state
specifically does not authorize debtors who are domiciled in this
state to exempt the property specified under the provisions of 11
U.S.C. §522(d).
Any person who files a petition under the federal bankruptcy
law may exempt from property of the estate in a bankruptcy
proceeding the following property:
(a) The debtor's interest
not to exceed twenty-five thousand
dollars in value, in real property or personal property that the
debtor or a dependent of the debtor uses as a residence, in a
cooperative that owns property that the debtor or a dependent of
the debtor uses as a residence or in a burial plot for the debtor
or a dependent of the debtor,
Provided, That when not to exceed
fifty thousand dollars, unless:
(1) The debtor is a physician licensed to practice medicine in
this state under article three or article fourteen, chapter thirty
of this code, and has commenced a bankruptcy proceeding in part due
to a verdict or judgment entered in a medical professional
liability action, if the physician has current medical malpractice
insurance in the amount of at least one million dollars for each
occurrence, the debtor physician's interest that is exempt under
this subsection may exceed
twenty-five fifty thousand dollars in
value but may not exceed two hundred fifty thousand dollars per
household;
(2) The debtor is a surviving spouse and any interest in real
or personal property described in this subsection was owned jointly
with survivorship with the deceased spouse, in which event, the
debtor's interest that is exempt under this subsection may exceed
fifty thousand dollars in value, but may not exceed one hundred
thousand dollars in value; or
(3) Any part of the real or personal property described in this subsection is owned jointly with a nonfiling spouse or owned
jointly with anyone other than a spouse, in which event, the
debtor's interest in the jointly owned property is exempt
regardless of the value of the interest, unless any debts other
than debts secured by the property are owed by all of the joint
tenants.
(b) The debtor's interest, not to exceed
two ten thousand
four
hundred dollars in value, in
one motor
vehicle vehicles used by the
debtor or a relative of the debtor.
(c) The debtor's interest
not to exceed four hundred dollars
in value in any particular item, in household furnishings,
household goods, wearing apparel, appliances, books, animals, crops
or musical instruments that are held primarily for the personal,
family or household use of the debtor or a dependent of the debtor
Provided, That the total amount of personal property exempted under
this subsection may not
to exceed eight thousand dollars.
(d) The debtor's interest:
(1) In wedding and engagement rings purchased more than one
year before the filing date of the bankruptcy petition; and
(2) Not to exceed one thousand dollars in value, in jewelry
held primarily for the personal, family or household use of the
debtor or a dependent of the debtor,
except wedding and engagement
rings purchased more than one year before the filing date of the
bankruptcy petition.
(e) The debtor's interest, not to exceed in value eight
hundred dollars plus any unused amount of the exemption provided
under subsection (a) of this section in any property.
(f) The debtor's interest
not to exceed one thousand five
hundred dollars in value, in any implements, professional books or
tools
of necessary for the trade of the debtor or the trade of a
dependent of the debtor.
(g) Any unmeasured life insurance contract owned by the
debtor, other than a credit life insurance contract.
(h) The debtor's interest, not to exceed in value
eight ten
thousand dollars
less without reduction for any amount of property
of the estate transferred in the manner specified in 11 U.S.C.
§542(d), in any accrued dividend or interest under, or loan value
of, any unmeasured life insurance contract owned by the debtor
under which the insured is the debtor or an individual of whom the
debtor is a dependent.
(i) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a
local public assistance benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit
received on
account of the disability, illness or unemployment of the debtor or a person of which the debtor was dependant whether the benefit is
paid by a government or private entity including an insurer or an
employer;
(4) Alimony, support or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing,
annuity or similar plan or contract on account of illness,
disability, death, age or length of service, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor, and funds on deposit in an individual
retirement account (IRA), including a simplified employee pension
(SEP) regardless of the amount of funds, unless:
(A) The plan or contract was established by or under the
auspices of an insider that employed the debtor at the time the
debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section
401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of
1986; and
(D) With respect to an individual retirement account,
including a simplified employee pension, the amount is subject to
the excise tax on excess contributions under Section 4973 and/or
Section 4979 of the Internal Revenue Code of 1986, or any successor provisions, regardless of whether the tax is paid.
(k) The debtor's right to receive or property that is
traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an
individual
of whom the debtor was a dependent, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(3) A payment under a life insurance contract that insured the
life of an individual of whom the debtor was a dependent on the
date of the individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed
fifteen fifty thousand dollars on
account of personal bodily injury, not including pain and suffering
or compensation for actual pecuniary loss, of the debtor or an
individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of
the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor;
(6) Payments made to the Prepaid Tuition Trust Fund or to the
Savings Plan Trust Fund, including earnings, in accordance with
article thirty, chapter eighteen of this code on behalf of any
beneficiary.
(l) The debtor?s right to receive any property or benefit that
is exempt under any other federal or West Virginia law, other than
bankruptcy law.
NOTE: The purpose of this bill is to update the exemptions
West Virginia provides under federal bankruptcy law to reasonable
levels.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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