WEST VIRGINIA

Has state opted out of federal bankruptcy exemptions? Yes. W. Va. Code § 38-10-4.

Is opt out limited to residents or domiciliaries of the state? Yes. W. Va. Code § 38-10-4: “[T]his state specifically does not authorize persons who are domiciled in this state to exempt the property specified in [§ 522(d)].”

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: W. Va. Code §§ 38-5A-1, 38-5A-3, 38-5A-9, 38-5B-12.

Scope: Salary and wages are given their ordinary meaning, but include compensation measured partly or wholly by commissions, percentages or share of profits, or by other sums based upon work done or results produced, whether or not debtor is given a drawing account. W. Va. Code § 38-5A-1.

Amount: Greater of 80% of wages or 50 times federal minimum hourly wage per week is exempt. W. Va. Code §§ 38-5A-3, 38-5A-9, 38-5B-12.

Survival after payment/deposit: Not specified in exemption statute, but note that it covers money “due and owing” or “to become due and owing.” W. Va. Code § 38-5A-3.

Waiver: Not specified in exemption statute.

Homestead: W. Va. Const. art. 6, § 48; W. Va. Code §§ 38-9-1 through 38-9-6, 38-10-4.

Amount: Bankruptcy only: $25,000 in real or personal property or a cooperative that debtor or dependent uses as a residence, or in a burial plot of debtor or dependent; $250,000 for physician’s bankruptcy arising from certain medical malpractice judgments. W. Va. Code § 38-10-4(a). Non-bankruptcy: $5000, which may be claimed by a “husband, wife, parent or other head of household.” W. Va. Code §§ 38-9-1, 38-9-2. For all debts and liabilities for hospital or medical expenses incurred for a catastrophic illness or injury as defined, the exemption is $7500. (Enhanced exemption does not apply to debts incurred before July 1, 1996.) W. Va. Code § 38-9-3(b).

Procedural requirements: None stated. Homestead available “by operation of law.” W. Va. Code § 38-9-1.

Special provisions: After debtor’s death, exemption continues to protect minor children. W. Va. Code § 38-9-5.

Waiver: Void and unenforceable except as to certain consensual security interests. W. Va. Code § 38-9-6.

Tangible personal property: W. Va. Code §§ 38-8-1, 38-8-3, 38-8-10, 38-8-15, 38-10-4, 46A-2-136; W. Va. Const. art. 6, § 48.

Household goods: Bankruptcy: household goods and furnishings, clothing, books, animals, musical instruments, up to $400 in any item to an aggregate of $8000. W. Va. Code § 38-10-4(c). Non-bankruptcy: $8000. W. Va. Code § 38-8-1(a)(2). For consumer credit transactions and consumer leases, all the property listed in W. Va. Code § 38-8-1, plus all children’s books, pictures, toys, and other such personal property of children, and all “medical health equipment used for health purposes” by consumer, spouse, or dependent. W. Va. Code § 46A-2-136.

Motor vehicles: Bankruptcy: $2400. W. Va. Code § 38-10-4(b). Non-bankruptcy: $5000. W. Va. Code § 38-8-1(a)(1).

Tools of trade: Bankruptcy: $1500. W. Va. Code § 38-10-4(f). Non-bankruptcy: $3000. W. Va. Code § 38-8-1(a)(3).

Clothing and jewelry: Bankruptcy: $1000 in jewelry. W. Va. Code § 38-10-4(d). (Clothing included in household goods exemption).

Miscellaneous and wildcard: Bankruptcy: $800 plus any unused household goods exemption (W. Va. Code § 38-10-4(e)); health aids. W. Va. Code § 38-10-4(i). Non-bankruptcy, head of household: $1000 any personal property. $15,000 cap on non-bankruptcy personal property exemptions including certain bank accounts. W. Va. Code § 38-8-1(b).

Benefits, retirement plans, insurance, judgments, and other intangibles: W. Va. Code §§ 38-8-1, 38-10-4.

Public benefits: Bankruptcy: Right to receive Social Security, unemployment, veterans’ benefits, local public assistance. W. Va. Code § 38-10-4(j). See also W. Va. Code § 9-5-1 (welfare assistance exempt).

Pensions, retirement plans, and annuities: Bankruptcy: Certain pensions and retirement plans; any unmeasured life insurance, and up to $8000 in accrued dividends or loan value (W. Va. Code §§ 38-10-4(g), 38-10-4(h)); right to receive any disability, illness, or unemployment benefit (W. Va. Code § 38-10-4(j)); right to receive or property traceable to crime victim reparations (W. Va. Code § 38-10-4(k)), wrongful death of person on whom debtor was dependent (W. Va. Code § 38-10-4(k)), life insurance proceeds as needed for support, up to $15,000 personal injury compensation (not including pain and suffering or actual pecuniary loss), loss of future earnings. W. Va. Code § 38-10-4(k). Non-bankruptcy: Certain IRA and Simplified Employee Pension funds are exempt. W. Va. Code § 38-8-1(a)(5).

Insurance, judgments, or other compensation for injury: Bankruptcy only: $8000 in loan value or accrued dividends of certain life insurance; $15,000 personal injury; wrongful death payment as needed for support; certain life insurance, as needed for support, compensation for loss of future earnings, as needed for support. W. Va. Code § 38-10-4(k).

Bank accounts: Bankruptcy: Payments to prepaid college tuition fund. W. Va. Code § 38-10-4(k)(6). Non-bankruptcy: “[F]unds on deposit in a federally insured financial institution, wages or salary, not to exceed” the greater of $1100. W. Va. Code § 38-8-1(a)(4).

Alimony, child support: Bankruptcy: Right to receive alimony, support or separate maintenance, to the extent needed for support. W. Va. Code § 38-10-4(j).

Tax refunds: Not specified in exemption statute.

Survival after payment or deposit: Note “property traceable to” language in certain bankruptcy exemptions.