15.2.3.1 Head-of-Household Requirements; Surviving Family Members

42 ARKANSAS: Ark. Const. art. 9, § 3 (protecting homestead of any resident who is married or the head of a family). See Richardson v. Klaesson, 210 F.3d 811 (8th Cir. 2000) (debtor-family trust which owned house and rented it to debtor-couple could not claim homestead exemption because it was neither married nor head of household; couple could exempt only their interest, here a tenancy at will); In re Purvis, 427 B.R. 6 (Bankr. W.D. Ark. 2010) (single person may be head of household if she has moral obligation to support dependent members of household; exemption established when terminally ill brother resided in home remained valid after his death); In re Morris, 340 B.R. 78 (Bankr. W.D. Ark. 2006) (allowing head-of-household exemption when debtor’s frail, low-income mother was a dependent; criteria are duty to support, which need not be legal, dependency, which need not be total, and position of authority; exemption, once established, continued after mother’s death); In re Warnock, 323 B.R. 249 (Bankr. W.D. Ark. 2005) (debtor qualified as head of household when she lived in and co-owned home with seventy-nine-year-old mother and had assumed duty of supporting mother); In re Kimball, 270 B.R. 471 (Bankr. W.D. Ark. 2001) (divorced debtor with no dependents not entitled to “married or head of household” exemption amount); Tri-State Delta Chems., Inc. v. Wilson, 55 S.W.3d 304 (Ark. Ct. App. 2001) (house became homestead when owner married and lived there with wife; exemption survived divorce).

CALIFORNIA: Cal. Civ. Proc. Code §§ 704.710(b) (defining “family unit” so that one way of qualifying is by caring for or maintaining a minor child in homestead), 704.730(a)(2) (granting an enhanced exemption if debtor is member of a family unit) (West). See In re Pugh, 522 B.R. 277 (Bankr. S.D. Cal. 2014) (divorced father with shared custody need not prove that his home was child’s primary residence in order to claim increased homestead for person who “cares for or maintains” a minor child; noting recent change in statutory definition of family unit); In re Billings, 262 B.R. 88 (Bankr. N.D. Cal. 2001) (California allows larger homestead exemption for one who is part of “family unit,” which may include adult relative unable to support self, here debtor’s epileptic daughter who could not drive and was irregularly employed at low-paying jobs).

NEBRASKA: In 2014, Nebraska repealed Neb. Rev. Stat. § 40-115, which had confined the homestead exemption to the “head of a family or an unmarried person age sixty-five or older.” Decisions interpreting the former language, which may still be relevant in other states, include: In re Roberts, 219 B.R. 235 (B.A.P. 8th Cir. 1998) (any married person, whether or not supporting a dependent and even if separated from spouse, may claim the Nebraska homestead exemption); In re Saythongphet, 2010 WL 3259363 (Bankr. D. Neb. Aug. 17, 2010) (allowing exemption; debtor sufficiently alleged that adult daughter who lived with her was unable to support self); In re Keller, 2008 WL 361126 (Bankr. D. Neb. Feb. 8, 2008) (allowing head-of-household exemption for home where unmarried debtor had resided with elderly mother, providing financial support and hands-on care; exemption survived after mother ceased to reside there); In re Deines, 2007 WL 4892122 (Bankr. D. Neb. Dec. 19, 2007) (unmarried person not head of household unless dependent is residing there on petition date, or resided there when home was purchased; denying exemption to debtor who provided home for her disabled brother during some winters); In re Allison, 209 B.R. 494 (Bankr. D. Neb. 1997) (Nebraska homestead exemption, which defined head of family to include anyone living with an adult son or daughter “unable to support themselves,” applied to debtor whose adult daughter had less than a high school education, could not find work nearer than forty miles away, had no reliable transportation, and needed to spend part of her time caring for ill family members); In re Uhrich, 355 B.R. 783 (Bankr. D. Neb. 2006) (two single persons resided in jointly owned house with their minor child and the minor niece of one of them; partner who had an income was head of house; niece did not qualify other partner as head of second household, because not the child of a deceased sibling as required by Nebraska definition); In re Roush, 215 B.R. 592 (Bankr. D. Neb. 1997) (two single adults, who both had minor children and lived together in a house they occupied as joint tenants, qualified as heads of households and could each claim a homestead exemption for their interest in the property). See also In re Olson, 2009 WL 1241294 (Bankr. D. Neb. May 4, 2009) (couple owned two contiguous lots, with a house on each; one house occupied by debtors and children, the other by husband’s frail elderly father; wife who moved into second house to care for father-in-law could claim homestead for that lot).

TEXAS: Tex. Prop. Code Ann. § 41.002(b) (West) (providing for larger rural homestead “for a family”). See Duran v. Henderson, 71 S.W.3d 833 (Tex. App. 2002) (father, adult daughter, and her child were family for purpose of increased Texas homestead exemption when all three relied on father’s Social Security check and daughter cared for incapacitated father; father had “at least a moral obligation” to provide for daughter and granddaughter). See also In re Fink, 2009 WL 3015340 (Bankr. S.D. Tex. Sept. 17, 2009) (father who paid child support for child of prior marriage was entitled to $60,000 personal property exemption for family, because he still qualifies as head of the family).

43 See, e.g., In re Bushey, 559 B.R. 766 (Bankr. D.N.M. 2016) (exemption for persons who support only themselves is available to anyone not a head of household, whether or not they are fully self-supporting).

44 In re Cutignola, 450 B.R. 445 (Bankr. S.D.N.Y. 2011) (home titled in wife alone; when she died shortly after petition date, her homestead exemption continued to protect surviving husband); In re Collins, 2005 WL 3506356 (Bankr. C.D. Ill. Nov. 30, 2005) (widow who inherited marital home could stack her exemption, as owner, with deceased husband’s exemption, which protected surviving spouse and minor child); In re Spann, 2005 WL 3200400 (Bankr. C.D. Ill. Nov. 29, 2005) (surviving spouse who continues to reside in marital home may stack own homestead exemption with that of deceased spouse; right not terminated by remarriage); Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. Dist. Ct. App. 2009) (homestead devised to qualified heir, here testator’s son, is exempt from creditors’ claims against estate); Traeger v. Credit First Nat’l Ass’n, 864 So. 2d 1188 (Fla. Dist. Ct. App. 2004) (protection applies to all heirs, even those who would not inherit under intestacy laws); In re Estate of Hamel, 821 So. 2d 1276 (Fla. Dist. Ct. App. 2002) (debtor was in process of selling condo at time of death, and executor closed sale shortly thereafter; proceeds exempt in hands of adult daughters); Thompson v. Laney, 766 So. 2d 1087 (Fla. Dist. Ct. App. 2000) (homestead exemption survives owner’s death if property passes to spouse or lineal descendent); In re Estate of Tolson, 690 N.W.2d 680 (Iowa 2005) (homestead exemption survived when property left to adult children); John Deere Cmty. Credit Union v. Miller, 810 N.W.2d 896 (Iowa Ct. App. 2012) (Iowa homestead passes to owner’s child free of debts of owner or preexisting debts of child; inherited proceeds must be used within a reasonable time to purchase or repair a homestead); Estate of Darby v. Stinson, 68 So. 3d 702 (Miss. Ct. App. 2011) (exempt property, including homestead, passes to spouse, children or grandchildren free of debts of deceased; Medicaid contract that allowed claim against the estate not a waiver of statutory homestead, because it did not make clear that recipient was waiving homestead); Maroun v. DeutscheBank Nat’l Tr. Co., 109 A.3d 203, 208 (N.H. 2014) (homestead exemption protects spouse who occupies house but is not title owner, both before and after title owner’s death); Parker v. Gates, 2000 Tex. App. LEXIS 8485 (Tex. App. Dec. 21, 2000) (Texas law allows homestead to descend free and clear of decedent’s debts, if surviving spouse, minor child, or unmarried adult child resides there; not shown when adult daughter rented apartment and owned business in another city even though she moved in after mother’s death). But cf. In re Joseph, 262 B.R. 33 (Bankr. W.D.N.Y. 2001) (widow not permitted to claim both her own homestead exemption and that of husband who had died in 1980; New York statute which allows survival of homestead exemption for protection of spouse and children applies only to decedent’s debts, not individual debts of the survivor).