Email this page to a friendWest Virginia Exemptions
In general, a debtor may claim exemption of his homestead and certain personal property from attachment and execution of a judgment.
The homestead of a debtor, his spouse, parent or other head of a household residing in the State of West Virginia, or the infant children of deceased or insane parents, is exempt up to the value of $5,000 from all debts and liabilities, except debts incurred for the purchase money thereof, or for the erection of permanent improvements thereon, and claims for taxes or county or district or municipal levies due thereon. (§38-9-1.) Homestead is defined as property owned and used as the principal home for the debtor, his spouse or a dependent, or any or all of them, whether classified as real property, chattel real, a fixture or personal property. (§38-9-2.) In a situation where the debt or liability was for hospital or medical expenses incurred from a catastrophic illness or injury, the exemption value may be increased to $7,500. "Catastrophic illness or injury" means a medically verified illness or injury for which any insurance or other applicable benefits have been exhausted, and which incapacitates and creates a financial hardship upon the debtor, his or her spouse or sibling or dependent of the debtor, who uses the homestead as a principal home at the time the debt was incurred. (§38-9-3(b).)
The personal property of a judgment debtor, up to the value of $1,000 may be exempt from execution or other process. The working tools of a mechanic, artisan or laborer's trade or occupation may be exempt up to the value of $50. The total exemption however may not exceed the $1,000 limit. (§38-8-1.)
In a bankruptcy proceeding, debtors who are domiciled in the State of West Virginia are not permitted to claim exemption of those property specified under the provisions of 11 U.S.C. 522(d).
Instead, a debtor may claim exemption from property of the estate interest in real or personal property not to exceed $15,000 in value which are used as a residence by the debtor or his dependent or in a burial plot; one motor vehicle not to exceed $2,400 in value; 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 not to exceed $400 in value in any particular item and not to exceed $8,000 in total value; jewelry held primarily for personal, family or household use of the debtor or his dependent not to exceed $1,000 in value; any property not to exceed $800 in value plus any unused amount exempt under subsection (a) of §38-10-4; any implements, professional books or tools of the trade not to exceed $1,500 in value; any unmatured life insurance contract owned by the debtor other than a credit life insurance contract; any accrued dividend or interest under, or loan value of, any unmatured life insurance contract not to exceed $8,000 in value; professionally prescribed health aids for the debtor or a dependent of the debtor; social security benefit, unemployment compensation or local public assistance benefit, veteran's benefit, disability, illness or unemployment benefit; alimony, support or separate maintenance to the extent reasonably necessary for the support of the debtor or any dependent of the debtor; limited 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; award under a crime victim's reparation law; 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; 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 such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; a payment, not to exceed $15,000 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; 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; and payments made to the prepaid tuition trust fund on behalf of any beneficiary. (§38-10-4.)
Chapter 38. Liens
Article 8. Exemptions from Levy
§ 38-8-1. Exemptions of personal property(a) Any individual residing in this state or the dependent of such individual may set apart and hold as exempt from execution or other process the following personal property:
(1) Such individual's interest, not to exceed five thousand dollars in value, in one motor vehicle;
(2) Such individual's interest, not to exceed eight thousand dollars in aggregate value, in household goods, furniture, toys, animals, appliances, books and wearing apparel that are held primarily for the personal, family or household use of such individual;
(3) Such individual's aggregate interest, not to exceed three thousand dollars, in any implements, professional books or tools of such individual's trade;
(4) Such individual's funds on deposit in a federally insured financial institution, wages or salary, not to exceed the greater of: (i) One thousand dollars; or (ii) one hundred twenty-five percent of the amount of the annualized federal poverty level of such individual's household divided by the number of pay periods for such individual per year; and
(5) Funds on deposit in an individual retirement account (IRA), including a simplified employee pension (SEP), in the name of such individual: Provided, That the amount is exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under Section 4973 or Section 4979 of the Internal Revenue Code of 1986, or both sections, or any successor provisions, regardless of whether the tax is or has been paid.
(b) Notwithstanding the foregoing, in no case may an individual residing in this state or the dependent of such individual exempt from execution or other process more than fifteen thousand dollars in the aggregate in personal property listed in subdivisions (1), (2), (3) and (4), subsection (a) of this section.
§ 38-8-2. Definition of value
For the purpose of this article, the term "value," when used without any modifying words, means fair market value as of the date the exemption is claimed, less all liens other than judicial liens obtained by legal or equitable proceedings.
§ 38-8-3. Method of claiming exemption on personal property
When a debtor claims personal property as exempt under the provisions of this article, he or she shall deliver to the officer holding the execution or other process, a list by separate items with the fair market value of each item, according to the belief of the debtor, of all personal property and estate owned or claimed by the debtor, including money, bonds, bills, notes, claims and demands, along with the address of the person so indebted. The list shall also set forth with respect to each item of personal property and estate the name and address of the holder of and the current amount owing on each lien thereon other than judicial liens obtained by legal or equitable proceedings.
The debtor shall verify such list, valuation and lien indebtedness by affidavit, which affidavit shall also show that the debtor is entitled to the exemption, and shall specify the character in which he claims to be so entitled, as for example, that he is a husband. If the value of the property named in the list exceeds, as stated therein, the maximum allowed amounts set forth in section one of this article, the debtor shall state at the foot thereof what part of the property he claims as exempt, but if such value does not exceed the allowed amount, as so stated, the claim of exemption shall be held to extend to the whole thereof without stating more; and if no appraisement thereof be demanded, as hereinafter provided, the property so claimed shall be set apart to the debtor as exempt.
If the husband, wife, parent or other head of a household owning such property be absent, or incapable of acting, or neglect or decline to act, the claim may be made, the list delivered, and the affidavit made by another member of the family, with the same effect as if made by the owner, and the claim may be made, the list delivered, and the affidavit made on behalf of infant children by the guardian thereof or someone standing in loco parentis thereto. The officer shall immediately, upon receipt of the list, exhibit the same to the creditor, his or her agent or attorney.
§ 38-8-4. Demand for appraisement; selection of appraisers
If, within five days after the delivery of the list to the officer, the creditor, his agent or attorney, demand an appraisement of the property listed under the preceding section, two disinterested householders of the neighborhood shall be chosen, within twenty-four hours of such demand, one by the debtor, his agent or attorney, or, in their absence or failure to act, by his spouse, and the other by the creditor, his agent or attorney and these two, if they cannot agree, shall select a third; but if either party fail to choose an appraiser, or the two fail to select a third, or if one or more of the appraisers fail to act, the officer shall fill the vacancy.
§ 38-8-5. Appraisement
The appraisers shall forthwith proceed to make a list, by separate items, of the personal estate selected by the debtor, affixing to each item the fair market value they may agree on, and annexing to the list their affidavit to the following effect: "We solemnly swear that, to the best of our judgment, the above is the fair market value of the property therein described"; which affidavit shall be signed by two appraisers at least, and be certified by some person authorized to administer oaths.
§ 38-8-6. Officer's return to include appraisement and debtor's list
The list shall be delivered to the officer holding the execution, order of sale or other process, and be by him annexed to and made part of his return; and the property therein specified shall be exempt from levy and sale, and the other personal estate of the debtor shall remain subject thereto. The officer shall also annex as part of his return the list specified in the third section of this article.
§ 38-8-7. Release of exempt claim or demand
When an attachment or suggestion has been served on a person owing a claim or demand to the debtor which is by him exempted as aforesaid, the officer shall, upon request, release such claim or demand by giving the debtor, his spouse, agent or attorney, a written certificate of such exemption, which certificate shall be delivered to the person owing the claim or demand, who shall thereupon be entitled to pay the same to the debtor.
§ 38-8-8. Forfeiture by officer selling or refusing to release exempt property
Any officer who shall sell any property so claimed as exempt, after the provisions of the third section of this article have been complied with by the debtor, his agent, attorney, or spouse, shall forfeit to such debtor double the value of the property so sold, which forfeiture may be recovered from the officer and his sureties in his official bond in any court having jurisdiction in the case. And any officer failing to release any money or property in his control which shall have been exempted, or failing to deliver the same if in his possession, to the debtor, his agent, attorney or spouse, upon request, shall forfeit to the debtor five dollars for each day such failure may continue, which forfeiture may be recovered from the officer and his sureties in an action upon his official bond in any court having jurisdiction. In an action on such bond or on an indemnifying bond taken by such officer, defense may be made on the ground that the debtor was not entitled to exemption as stated in the affidavit accompanying his list.
§ 38-8-9. Compensation of appraisers
Each appraiser shall be entitled to one dollar, to be paid by the creditor if the appraised fair market value of the property claimed by the debtor as exempt is equal to or greater than the fair market value ascribed to such property by the debtor; otherwise to be paid by the debtor.
§ 38-8-10. Right of exemption of surviving spouse or minor children
After the death of a husband, wife or parent residing in this State, his surviving spouse or minor children, or such of them as there may be, may select personal estate of the deceased, not exceeding one thousand dollars in value, and hold the same exempt from any debts or liabilities of the deceased spouse or parent, contracted or incurred by the deceased in his lifetime, but the personal representative or any creditor of the deceased may have the personal estate so selected appraised as prescribed in the preceding sections of this article, and with like effect; and no greater amount than one thousand dollars of the personal estate of the deceased shall be exempt by virtue of this provision; and if during his lifetime, he had himself set apart personal estate to be exempt from execution and other process, the same shall be subject thereto after his death, so far as it is not selected as aforesaid by his surviving spouse and minor children, or such of them as there may be.
§ 38-8-11. No exemption from claims for child or spousal support, purchase money or taxes
No exemption claimed under the preceding sections of this article, or any of them, shall affect or impair any claim for child or spousal support established or enforced under the provisions of chapter forty-eight of this code, the purchase money of the personal estate in respect to which such exemption is claimed, or any proceeding for the collection of taxes, or county or district or municipal levies. Any increase in the exemption provided by a prior enactment of other sections of this article are not applicable to liens and all other debts and liabilities contracted and incurred prior to the effective date of the prior enactment of those sections.
§ 38-8-12. How appraisement may be set aside; determination of liens
Whenever an appraisement has been timely demanded by the creditor, his agent or attorney, the circuit court of the county, or judge thereof in vacation, on motion of any person aggrieved made within ten days after delivery of the appraisement list to the officer as specified in section six of this article, may set aside any appraisement made as provided in this article, order a new appraisement to be made and returned, and appoint appraisers for that purpose, and may determine the amount and validity of the liens on the items of personal property and estate set forth on the debtor's list delivered to the officer as specified in section three of this article, and make such order respecting the costs as may be deemed just. Any determination under this section of the amount and validity of liens shall be binding only as between the debtor and the creditor at whose instance the execution or other process has issued.
§ 38-8-13. Proceedings or transfers to avoid exemption prohibited
It shall be unlawful for any person to institute, or permit to be instituted, proceedings in his own name, or in the name of any other person, or to assign or transfer, either for or without value, any claim for debt, or liability of any kind, held by him against a resident of this State, for the purpose of having payment of the same, or any part thereof, enforced out of the wages that may be exempted by virtue of the provisions of this article by proceedings in attachment or garnishment, in courts, or before justices of the peace, in any other state than in the State of West Virginia; or to send out of this State by assignment, transfer, or in any other manner whatsoever, either for or without value, any claim or debt against any resident thereof, for the purpose or with the intent of depriving such person of the right to have his wages exempt from distress, levy or garnishment, according to the provisions of this article. And the person instituting such suit, or permitting such suit to be instituted, or sending, or assigning, or transferring any such claim or debt for the purpose, or with the intent aforesaid, shall be liable in an action of debt to the person from whom payment of the same or any part thereof shall have been enforced by attachment or garnishment, or otherwise, elsewhere than in the State of West Virginia, for the full amount, payment whereof shall have been so enforced, together with interest thereon, and the cost of the attachment or garnishment proceedings, as well as the costs of such action to recover the same.
The fact that the payment of a claim or debt against any person entitled to the exemption provided for by this article has been enforced by legal proceedings in some state other than the State of West Virginia, in such manner as to deprive such persons to any extent of the benefit of such exemption, shall be prima facie evidence that any resident of this State who may at any time have been owner or holder of such claim or debt has violated this section.
<Acts 1976, c. 33, provided that all references to "justice of the peace" in the code of West Virginia mean "magistrate." See § 50-1-17.>
§ 38-8-14. Unripe crops exempt; exception as to corn
No crop shall be liable to distress or levy until it is mature, or has been severed from the soil, except that Indian corn may be taken at any time after the fifteenth day of October of the year when it was planted.
§ 38-8-15. Waiver of exemption void
Any waiver of the rights conferred by this article shall be void and unenforceable.
Chapter 38. Liens
Article 9. Homestead Exemptions (Refs & Annos)
§ 38-9-1. Persons entitled to homestead; valueAny husband, wife, parent or other head of a household residing in this State, or the infant children of deceased or insane parents, owning a homestead shall by operation of law have a homestead exemption therein to the value of five thousand dollars, subject to the provisions of section forty-eight, article six of the Constitution of this State.
§ 38-9-2. Definitions
As used in this article:
(1) "Homestead" means property owned and used as the principal home for the debtor, his spouse or a dependent, or any or all of them, whether classified as real property, chattel real, a fixture or personal property; and
(2) "Value," without any modifying words, means fair market value as of the date the exemption is asserted, less all liens other than judicial liens obtained by legal or equitable proceedings.
§ 38-9-3. Debts enforceable against homestead
(a) As of the effective date of this article, a homestead shall be exempt up to the value of five thousand dollars from all debts and liabilities, except debts incurred for the purchase money thereof, or for the erection of permanent improvements thereon, and claims for taxes or county or district or municipal levies due thereon. The exemption herein granted by operation of law shall not render the homestead exempt from liens and all other debts and liabilities contracted and incurred prior to the effective date of this article: Provided, That with respect to a homestead exemption up to one thousand dollars perfected by execution and recordation of a written instrument as required under the former provisions of this article, such exemption shall for all purposes continue to be governed by such former provisions of this article.
(b) In addition to the exemption provided in subsection (a) of this section and subject to the provisions of section eleven-c, article five, chapter nine of this code, effective the first day of July, one thousand nine hundred ninety- six, a homestead shall be exempt up to the value of seven thousand five hundred dollars from all debts and liabilities for hospital or medical expenses incurred from a catastrophic illness or injury. For purposes of this section, "catastrophic illness or injury" means a medically verified illness or injury for which any insurance or other applicable benefits have been exhausted, and which incapacitates and creates a financial hardship upon the debtor, his or her spouse or sibling or dependent of the debtor, who uses the homestead as a principal home at the time the debt was incurred. The exemption provided by this section shall expire upon the date of the death of the debtor, the death of the debtor's spouse or the death of a disabled dependent of the debtor who uses the homestead as a principal home, whichever is the later.
The exemption provided pursuant to this subsection by operation of law shall not render the homestead exempt from liens and all other debts and liabilities contracted and incurred prior to the first day of July, one thousand nine hundred ninety-six.
The tax commissioner shall propose for promulgation legislative rules, not inconsistent with this section, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish the procedures for exempting homesteads from debts and liabilities incurred from a catastrophic illness or injury.
§ 38-9-4. Proceedings to reach excess value of homestead
Any creditor of the person owning such homestead may assert a claim in a civil action, alleging that the value of the homestead is of greater value than five thousand dollars, and if the court shall be satisfied, from the proofs in the cause, that the allegations are true, it shall make such order or decree as may be necessary to subject such excess of value, above the sum of five thousand dollars, to the payment of the debt, or demand of such creditor. If more than one creditor shall join in such judicial proceeding, and their debts or claims be of equal priority, such excess shall be paid pro rata upon the debt or claim of each.
§ 38-9-5. Descent of homestead to infant children
In case of the death of a husband, wife or parent owning such homestead, the benefit thereof shall descend to his or her minor children, and shall be held and enjoyed by them as such homestead, until all of such infants attain the age of twenty-one years unless they sooner die.
§ 38-9-6. Waiver of exemption void
Any waiver of the rights conferred by this article shall be void and unenforceable except to the extent that (1) such waiver is accompanied by a consensual security interest in the property in which the homestead exemption is asserted and (2) such security interest cannot be satisfied without encroaching upon the homestead exemption so asserted.
Chapter 38. Liens
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 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 thousand dollars in value but may not exceed two hundred fifty thousand dollars per household.
(b) The debtor's interest, not to exceed two thousand four hundred dollars in value, in one motor vehicle.
(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 exceed eight thousand dollars.
(d) The debtor's interest, 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.
(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 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 thousand dollars less 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;
(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 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.
