Homestead Exemptions on Real Estate in VA vs Other States
- Adam Garrett
- May 29, 2024
- 30 min read
Updated: Jun 19, 2024
Image courtesy World Population Review
What is the Homestead Exemption?
Per World Population Review:
"A homestead exemption is a legal provision that helps shield a home from some creditors following the death of a homeowner spouse or the declaration of bankruptcy. A homestead exemption can block the forced sale of a primary residence and provide tax relief for surviving spouses. Homestead exemptions are only for one primary residence, and no other exemption can be claimed on any other property anywhere.
Homestead exemption is a great option for those facing financial hardship, such as people filing for bankruptcy or widow or widower facing higher bills than he or she can no longer afford to pay due to the passing of a spouse. Homestead exemptions can protect a home up to a certain value of the homeowner's equity in it. If the homestead's equity exceeds the limit of the exemption in that state, creditors may force the debtors to sell. In this case, the debtors would receive the monetary amount of the bankruptcy exemption.
Tax reductions under homestead exemptions are usually a fixed discount on taxes. For example, a home valued at $150,000 using a $50,000 homestead exemption will be taxed on $100,000 of assessed value.
Homestead exemptions vary by state, including how it is applied and how much protection it offers against creditors. New Jersey & Pennsylvania have no homestead exemptions.
The current federal bankruptcy exemption amount as of 2019 is $25,150. While most states require homeowners to use the state's limit, some will allow the homeowner to use either the federal or the state."
The Problem with Many Charts of States: Inaccuracy/Outdated & Limited Information
The biggest problem with charts I found near the top of a Google search was that information is often provided in such a way where you have too limited context and the provisions stated in the chart don't apply to all people, with some people getting more or less than that which is in the chart, without the chart making any mention of those exceptions to the rule in many cases. For instance, even if the chart was updated in the past 2 months, it still has information that appears outdated by more than 4 years. Even if a chart was supposedly "fact checked" by an independent party, I'm still seeing that problem. I suspect that most authors are relying on charts already present rather than verifying information independently of existing charts.
As an example, VA's limit isn't $5k total (despite what many outdated charts say, even if "recently updated" or recently published) for anyone with real &/or personal property used as a principal residence in excess of that amount who hasn't used the homestead exemption in the past 8 years. It's $25k at minimum for those whose principal residence value exceeds that amount. Also that limit is the minimum available for everyone, not just those who are low income, disabled, have low assets, are elderly, etc. Certain people, such as the elderly & veterans, get more than others.
If you find a chart that's much more accurate than others, please alert me in the comments.
Homestead Exemption Charts
Keep in mind that with the below, the problems I mention above still apply where you should definitely check the law code of the specific state(s) you're considering rather than relying on the chart due to a big problem with chart inaccuracy, i.e. all of the below getting VA's homestead exemption wrong with outdated info, & the below being the most comprehensive charts out of the 1st few dozen on Google with basic search terms. VA isn't isolated either, as I saw with the only other state that I fact checked with the charts (Kentucky):
Wold Population Review (source of Investopedia's list)
States that Allow Federal Exemption Instead
Per Nolo:
"Currently, the following states allow filers to choose between state and federal bankruptcy exemptions. If your state gives you a choice, you must pick one list or the other. You can't mix and match items from both lists.
Filers who use state exemptions can also use federal nonbankruptcy exemptions."
VA Main Homestead Provisions:
Recent Changes Explained by Attorney
William E. Callahan, Jr. with Gentry Locke Attorneys explains the following:
"The 2020 Virginia General Assembly enacted significant changes to Virginia’s most widely used exemption statutes in Title 34. In 2020 Virginia House Bill 790, which becomes effective on July 1, 2020, the legislature expanded both the amount of and procedure for claiming what is commonly referred to as the “Homestead Exemption” by simplifying the procedure for debtors claiming those exemptions in a pending bankruptcy case.
Currently (in June 2020) the Homestead Exemption under section 34-4 of the Code of Virginia permits an individual (a “householder”) to exempt from creditor process real and personal property up to $5,000 in value (or $10,000 in value if the householder is 65 years of age or older), plus an additional exemption of $500.00 for each dependent (a dependent is an individual who derives support from the householder and does not have assets sufficient to support himself). Under the amended section 34-4, an individual may also exempt from creditor process “real and personal property used as the principal residence of the householder or the householder’s dependents in an amount not exceeding $25,000.00 in value.” As an example, a person who is 65 years old and has two dependents, could exempt equity in their home in a total of $36,000.00 by using the former existing exemption and the new “principal residence exemption...”
Provision Basics Quoted ($25k for personal residence, $5k+ for money & Debts Due)
Per VA Law as of 3/26/24:
"Chapter 2. Homestead Exemption of Householder.
§ 34-4. Exemption created.
Every householder shall be entitled, in addition to the property or estate exempt under §§ 23.1-707, 34-26, 34-27, 34-29, and 64.2-311, to hold exempt from creditor process arising out of a debt, real and personal property, or either, to be selected by the householder, including money and debts due the householder not exceeding $5,000 in value or, if the householder is 65 years of age or older, not exceeding $10,000 in value, and, in addition, real or personal property used as the principal residence of the householder or the householder's dependents not exceeding $25,000 in value. In addition, upon a showing that a householder supports dependents, the householder shall be entitled to hold exempt from creditor process real and personal property, or either, selected by the householder, including money or monetary obligations or liabilities due the householder, not exceeding $500 in value for each dependent.
For the purposes of this section, "dependent" means an individual who derives support primarily from the householder and who does not have assets sufficient to support himself, but in no case shall an individual be the dependent of more than one householder.
Code 1919, § 6531; 1918, p. 487; 1975, c. 466; 1977, c. 496; 1978, c. 231; 1990, c. 942; 1997, cc. 785, 861; 2009, c. 387; 2020, c. 328."
§ 34-4.1. Additional exemption for certain veterans.
Per VA Law as of 3/26/24:
"Every veteran residing in this Commonwealth having a service connected disability of forty percent or more, as rated by the U.S. Department of Veterans Affairs, shall be entitled, in addition to the property or estate which he is entitled to hold exempt from creditor process under §§ 34-4, 34-26, 34-27, 34-29, and 64.2-311, to hold exempt from creditor process his real and personal property, or either, to be selected by him by the writings required by §§ 34-6 and 34-14, including money and debts due him, not exceeding $10,000 in value.
1966, c. 499; 1977, c. 496; 1978, c. 231; 1990, c. 942; 1993, c. 150; 2009, c. 388."
§ 34-4.2. Additional exemption for parents of dependent children.
Per VA Law as of 3/26/24:
"§ 34-4.2. Additional exemption for parents of dependent children.
A. Where a parent supports a dependent minor child or children residing with him, that parent can hold exempt from wage garnishment, in addition to the property or estate that he is entitled to hold exempt from creditor process under §§ 20-108.1, 34-4, 34-4.1, 34-26, 34-27, 34-29, and 64.2-311, an additional amount for the support of the child or children as follows: $34 per week for one child; $52 per week for two children; and $66 per week for three or more children. This additional wage exemption amount shall not be available to a parent whose household gross income, including any support payments for children living in the home, exceeds $1,750 per month. For purposes of this section, "household gross income" means all income from all sources, and shall include, but not be limited to, salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, child support, spousal support, rental income, gifts, prizes or awards paid to any adult living in the household or to the dependent child."
§ 34-5. To what debts exemptions shall not apply.
Per VA Law as of 3/26/24:
"The property exemptions created under this Code shall not be claimed against the following debts:
1. For the purchase price of such property or any part thereof. If the property purchased and not paid for is exchanged for or converted into other property by the debtor, such last named property shall not be exempted from the payment of such unpaid purchase money.
2. For spousal or child support obligations.
Code 1919, § 6531; 1918, p. 487; 1956, c. 637; 1986, c. 218; 1990, c. 942; 1991, c. 256; 2010, c. 550."
§ 34-6. How exemption of real estate secured
Per VA Law as of 3/26/24:
"In order to secure the benefit of the exemptions of real estate under §§ 34-4 and 34-4.1, the householder, by a writing signed by him and duly admitted to record, to be recorded as deeds are recorded, in the county or city wherein such real estate or any part thereof is located or, if such property is located outside of the Commonwealth, in the county or city in the Commonwealth where the householder resides, shall declare his intention to claim such benefit and select and set apart the real estate to be held by the householder as exempt, and describe the same with reasonable certainty, affixing to the description his cash valuation of the estate so selected and set apart. However, if such real estate is claimed exempt in a case filed under Title 11 of the United States Code, the official Schedule of Property Claimed as Exempt filed in the United States Bankruptcy Court claiming such exemptions shall be sufficient to set apart such property as exempt. Equitable as well as legal estates may be so selected and set apart."
Many More Details in Homestead Law
The VA Law as of 3/26/24 includes a number of additional sections, most of which I'll include below, not including any of the mentioned forms:
§ 34-7. Real estate, subject to encumbrances, may be set apart; if sold, how surplus disposed of.
Such real estate may be selected and set apart as aforesaid, subject to any paramount encumbrances thereon. If a sale be had to satisfy the encumbrances, the surplus of the proceeds, if any, not exceeding the amount to which the householder is entitled under § 34-4, shall be paid to the householder and invested by him in such other property as he may select.
Code 1919, § 6533.
§ 34-8. Partition or sale of real estate held as exempt by joint tenant, etc.
If the estate so set apart be held by the householder as joint tenant, coparcener or tenant in common, partition or sale may be had as provided by Article 11 (§ 8.01-96 et seq.) of Chapter 3 of Title 8.01 and in case of sale the share of the proceeds to which the householder is entitled shall be paid to the householder and invested by him in such other property as he may select.
Code 1919, § 6534.
§ 34-9. How real estate set apart as exempt may be encumbered or aliened.
Real estate set apart as aforesaid may be sold and conveyed as other real estate held by the householder and the proceeds invested in other property, or it may in like manner be exchanged for other property, but in no case shall the purchaser be bound to see to the application of the purchase money.
Code 1919, § 6535.
§ 34-10. Repealed.
Repealed by Acts 1981, c. 580.
§ 34-13. Householder may set apart exemption in personal estate.
If the householder does not set apart any real estate as before provided, or if what he does or has so set apart is not of the total value which he is entitled to hold exempt, he may, in addition to the property or estate which he is entitled to hold exempt under §§ 34-26, 34-27, 34-29, and 64.2-311, in the first case select and set apart by the writing required by § 34-14 to be held by him as exempt under §§ 34-4 and 34-4.1, so much of his personal estate as shall not exceed the total value which he is entitled to hold exempt and, in the latter case, personal estate, the value of which, when added to the value of the real estate set apart, does not exceed such total value.
Code 1919, § 6539; 1975, c. 466; 1980, c. 167; 1990, c. 942; 1993, c. 150.
§ 34-14. How set apart in personal estate; form to claim exemption of personal property.
Such personal estate selected by the householder under § 34-4, 34-4.1, or 34-13 shall be set apart in a writing signed by him. He shall, in the writing, designate and describe with reasonable certainty the personal estate so selected and set apart and each parcel or article, affixing to each his cash valuation thereof. Such writing shall be admitted to record, to be recorded as deeds are recorded in the county or city wherein such householder resides. However, if such personal estate is claimed exempt in a case filed under Title 11 of the United States Code, the official Schedule of Property Claimed as Exempt filed in the United States Bankruptcy Court claiming such exemptions shall be sufficient to set apart such property as exempt.
§ 34-15. Repealed.
Repealed by Acts 1981, c. 580.
§ 34-17. When exemption may be set apart; garnished wages.
A. The real or personal estate that a householder is entitled to hold as exempt may be set apart at any time before it is subjected by sale under creditor process or by a trustee in bankruptcy, or, if such creditor process does not require sale of the property, before it is turned over to the creditor.
B. A claim of homestead exemption to protect garnished wages may be filed by the debtor after the garnishment summons is served on the employer but prior to or upon the return date of the garnishment summons and shall be considered by the garnishing court.
Code 1919, § 6543; 1944, p. 489; 1974, c. 272; 1981, c. 580; 1985, c. 521; 1990, c. 942; 2003, c. 1000; 2005, c. 367; 2020, c. 328.
§ 34-18. Rents and profits exempt; increase in value of estate set apart.
The rents and profits of the property set apart shall be exempt in the same manner as the corpus of such property and if the whole real and personal estate set apart be not of greater value than the amount the householder is entitled to exempt at the time it is so set apart, the exemption thereof shall not be affected by any increase in its value afterwards, unless such increase consists of permanent improvements placed upon real estate set apart by means derived from some source other than exempt property.
Code 1919, § 6544; 1975, c. 466; 1977, c. 496; 1990, c. 942.
§ 34-19. How excess in value set apart subjected to debts.
Any creditor, against whom an exemption is claimed, may file a bill in equity, alleging that the value of the estate at the time it was set apart was more than the amount the householder is entitled to exempt or, that by reason of permanent improvements made on the real estate after it was set apart by means derived from some source other than exempt property, the whole estate set apart is of greater value than the amount the householder is entitled to exempt. If the court is satisfied from the proofs in the cause that the allegations of the bill are true, it shall make such decree or order as may be necessary to subject the estate set apart, so far as it exceeds the amount the householder is entitled to exempt, to the payment of the debt or demand of such creditor.
Code 1919, § 6545; 1975, c. 466; 1977, c. 496; 1990, c. 942.
§ 34-20. Proceeds of sale of estate exempt; how evidenced.
The estate or property in which proceeds of sale are invested, or which may be acquired in exchange, under any of the preceding sections of this chapter, shall be held exempt in like manner and to the like extent as the estate sold or exchanged was held. But such estate or property when acquired in exchange or otherwise than by investment under an order of court, or unless when set apart by a court, shall be set apart, if real estate, by such a writing as is prescribed by § 34-6; if personal estate, by such a writing as is prescribed by § 34-14; and such writing shall be recorded as provided by the same sections, respectively. In addition to the requirements of such sections, the writing shall state from what source the estate was derived and with what means acquired. When such estate is invested or set apart under an order of court, a copy of the order and of any report of a commissioner or other officer making the investment thereunder, if confirmed, and a copy of the order of confirmation, duly certified by the clerk of the court, shall be recorded in the deed book of the county or city wherein the writing, if the estate had been set apart by a writing, is required to be recorded.
Code 1919, § 6546.
§ 34-21. When householder's right to exemption is exhausted.
When an amount of property, whether real or personal, or both, has been set apart to be held by a householder as exempt under § 34-4, 34-4.1, or 34-13, such amount shall for a period of eight years from such setting apart be applied against the maximum amount to which the householder is entitled to set apart as exempt under § 34-4, 34-4.1, or 34-13.
Code 1919, § 6547; 1975, c. 466; 1977, c. 496; 1990, c. 942; 1996, c. 330; 2020, c. 328.
§ 34-22. Waiver of exemption; its effect; form of waiver.
If any person shall declare in a bond, bill, note or other instrument by which he is or may become liable for the payment of money to another or by a writing thereon or annexed thereto that he waives, as to such obligation, the exemption from liability of the property or estate which he may be entitled to claim and hold exempt under the provisions of this chapter, such property or estate, whether previously set apart or not, shall be liable to be subjected for such obligation, under legal process, in like manner and to the same extent as other property or estate of such person. But such waiver shall not extend to or affect the exemption of the property or estate exempt under §§ 34-26, 34-27 and 34-29. The following or equivalent words shall be sufficient to operate as the waiver hereinbefore provided for: "I (or we) waive the benefit of my (or our) exemption as to this obligation." If a debt which is superior to the homestead, or as to which the homestead is waived, be paid off by a surety therein, the principal shall not be allowed to claim the homestead as against such surety.
Code 1919, § 6548.
§ 34-23. How claim enforced when exemption waived, etc.
In any proceeding for the enforcement of a claim, which by reason of the waiver aforesaid or otherwise, is paramount to the exemption, if there be in the county or city wherein the proceeding is estate of the debtor other than that which has been set apart as aforesaid, such other estate shall be subjected and exhausted before the estate so set apart is resorted to. If, however, the claim is secured by mortgage, deed of trust or other specific lien on the estate set apart, nothing in this section contained shall prevent the enforcement of the security in the first instance and before resorting to other estate of the debtor.
Code 1919, § 6549; 1974, c. 272; 1981, c. 580.
§ 34-24. When the exemption ceases; lien of judgment or decree against householder.
When any person, entitled as a householder to the exemption provided for in § 34-4, ceases to be a householder or when any person removes from this Commonwealth, his right to claim or hold any estate as exempt under the provisions of this chapter, shall cease; but the lien of a judgment, or decree for money, rendered against a householder, and which is not paramount to the exemption provided for in this chapter, shall, as to the real estate held as exempt by him, attach to such only of that estate as he may be possessed of or entitled to at the time the exemption thereof ceases, as aforesaid, and until that time the lien shall not be enforced. Such judgments shall attach in the order of their priority, respectively, subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 2 of Title 64.2.
Code 1919, § 6550; 1972, c. 825; 1974, c. 272; 1981, c. 580.
§ 34-25. When homestead waived judgments and executions to so state.
Whenever a judgment or decree is rendered on an instrument waiving the homestead or upon a demand against which the homestead cannot be claimed the court shall include in its judgment or decree words to the following effect, as the case may be: "Upon an instrument waiving the homestead," or "upon a claim against which the homestead cannot be demanded." This statement shall be endorsed upon the executions issued upon such judgments or decrees. In any action or suit when it is not apparent from the face of the pleadings that the demand is not subject to the homestead exemption the plaintiff shall not have the benefit of the foregoing provision of this section unless in his declaration he alleges that his demand is not subject to such homestead exemption. But no presumption of nonwaiver or that the judgment or decree was rendered upon a demand against which homestead could be claimed is to be drawn from the silence of any judgment, execution or decree on the matters provided for by this section.
Code 1919, § 6551.
Disclaimer: Importance of Checking Updated Legal Codes
While I'm pulling directly from VA law for most of this section, it's important to verify in the links above from VA legal code that the information is the most up to date. I do not update this information on a daily basis. If you ever see that any element is not up to date, please alert me so that I may change that promptly. Also, please keep in mind that I am not an attorney.
Additional VA Homestead Related Provisions Mentioned in 1st Sentence of Homestead Exemption:
§ 23.1-707. Prepaid tuition contracts and college and ABLE savings trust agreements.
Per VA Law as of 3/26/24:
A. Each prepaid tuition contract made pursuant to this chapter shall include the following terms and provisions:
1. The amount of payment or payments and the number of payments required from a purchaser on behalf of a qualified beneficiary;
2. The terms and conditions under which purchasers shall remit payments, including the dates of such payments;
3. Provisions for late payment charges, defaults, withdrawals, refunds, and any penalties;
4. The name and date of birth of the qualified beneficiary on whose behalf the contract is made;
5. Terms and conditions for a substitution for the qualified beneficiary originally named;
6. Terms and conditions for termination of the contract, including any refunds, withdrawals, or transfers of tuition prepayments, and the name of the person entitled to terminate the contract;
7. The time period during which the qualified beneficiary is required to claim benefits from the Plan;
8. The number of credit hours or quarters, semesters, terms, or units contracted for by the purchaser, as applicable;
9. All other rights and obligations of the purchaser and the trust; and
10. Any other terms and conditions that the board deems necessary or appropriate, including those necessary to conform the contract with the requirements of § 529 of the Internal Revenue Code of 1986, as amended, which specifies the requirements for qualified state tuition programs.
B. Each college savings trust agreement made pursuant to this chapter shall include the following terms and provisions:
1. The maximum and minimum contribution allowed on behalf of each qualified beneficiary for the payment of qualified higher education expenses, as that term is defined in § 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law;
2. Provisions for withdrawals, refunds, transfers, and any penalties;
3. The name, address, and date of birth of the qualified beneficiary on whose behalf the savings trust account is opened;
4. Terms and conditions for a substitution for the qualified beneficiary originally named;
5. Terms and conditions for termination of the account, including any refunds, withdrawals, or transfers, and applicable penalties, and the name of the person entitled to terminate the account;
6. The time period during which the qualified beneficiary is required to use benefits from the savings trust account;
7. All other rights and obligations of the contributor and the Plan; and
8. Any other terms and conditions that the board deems necessary or appropriate, including those necessary to conform the savings trust account with the requirements of § 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law.
C. Each ABLE savings trust agreement made pursuant to this chapter shall include the following terms and provisions:
1. The maximum and minimum annual contribution and maximum account balance allowed on behalf of each qualified beneficiary for the payment of qualified disability expenses, as defined in § 529A of the Internal Revenue Code of 1986, as amended, or other applicable federal law;
2. Provisions for withdrawals, refunds, transfers, return of excess contributions, and any penalties;
3. The name, address, and date of birth of the qualified beneficiary on whose behalf the savings trust account is opened;
4. Terms and conditions for a substitution for the qualified beneficiary originally named;
5. Terms and conditions for termination of the account, including any transfers to the state upon the death of the qualified beneficiary, refunds, withdrawals, transfers, applicable penalties, and the name of the person entitled to terminate the account;
6. The time period during which the qualified beneficiary is required to use benefits from the savings trust account;
7. All other rights and obligations of the contributor and the Plan; and
8. Any other terms and conditions that the board deems necessary or appropriate, including those necessary to conform the savings trust account with the requirements of § 529A of the Internal Revenue Code of 1986, as amended, or other applicable federal law.
D. In addition to the provisions required by subsection A, each prepaid tuition contract entered into prior to July 1, 2019, shall include provisions for the application of tuition prepayments (i) at accredited nonprofit independent or private institutions of higher education, including actual interest and income earned on such prepayments, and (ii) at non-Virginia public and accredited nonprofit independent or private institutions of higher education, including principal and reasonable return on such principal as determined by the board. Payments authorized for accredited nonprofit independent or private institutions of higher education shall not exceed the projected highest payment made for tuition at a public institution of higher education in the same academic year, less a fee to be determined by the board. Payments authorized for non-Virginia public and accredited nonprofit independent or private institutions of higher education shall not exceed the projected average payment made for tuition at a public institution of higher education in the same academic year, less a fee to be determined by the board. In no event, however, shall the benefit paid on any prepaid tuition contract entered into prior to July 1, 2019, be less than the sum of tuition prepayments made and a reasonable return on such prepayments to be determined by the board, less any fees determined by the board.
E. In addition to the provisions required by subsection A, each prepaid tuition contract entered into on or after July 1, 2019, shall include provisions for the application of tuition prepayments, at a rate equal to the percentage of enrollment-weighted average tuition at public institutions of higher education to be determined by the board, at (i) public institutions of higher education, (ii) accredited nonprofit independent or private institutions of higher education, and (iii) non-Virginia public and accredited nonprofit independent or private institutions of higher education. In no event, however, shall the benefit paid on any prepaid tuition contract entered into on or after July 1, 2019, be less than tuition prepayments made, less any fees as determined by the board.
F. All prepaid tuition contracts and savings trust agreements shall specifically provide that if after a specified period of time the contract or savings trust agreement has not been terminated and the qualified beneficiary's rights have not been exercised, the board, after making a reasonable effort to contact the purchaser or contributor and the qualified beneficiary or their agents, shall report such unclaimed moneys to the State Treasurer pursuant to § 55.1-2524.
G. 1. Notwithstanding any provision of law to the contrary, money in the Plan is exempt from creditor process, is not liable to attachment, garnishment, or other process, and shall not be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of any purchaser, contributor, or beneficiary. Unless required by federal law, the Commonwealth, its agencies, and its instrumentalities shall not seek payment pursuant to 26 U.S.C. § 529A from any ABLE savings trust account or its proceeds for benefits provided to the beneficiary of the account and shall not undertake estate recovery from any ABLE savings trust account pursuant to 26 U.S.C. § 529A.
2. Unless prohibited by federal law, the beneficiary of an ABLE savings trust account may appoint a survivor. In the event of the beneficiary's death, if the survivor is (i) an eligible individual, as defined in 26 U.S.C. § 529A(e), then such survivor shall become the beneficiary of the ABLE savings trust account or (ii) not an eligible individual, as defined in 26 U.S.C. § 529A(e), then any proceeds remaining after final distributions have been made on behalf of the deceased beneficiary shall be distributed to the survivor and the account shall be closed.
H. Notwithstanding any other provision of state law that requires consideration of one or more financial circumstances of an individual for the purpose of determining (i) the individual's eligibility to receive any assistance or benefit pursuant to such provision of state law or (ii) the amount of any such assistance or benefit that such individual is eligible to receive pursuant to such provision of state law, any (a) moneys in an ABLE savings trust account for which such individual is the beneficiary, including any interest on such moneys, (b) contributions to an ABLE savings trust account for which such individual is the beneficiary, and (c) distribution for qualified disability expenses for such individual from an ABLE savings trust account for which such individual is the beneficiary shall be disregarded for such purpose with respect to any period during which such individual remains the beneficiary of, makes contributions to, or receives distributions for qualified disability expenses from such ABLE savings trust account.
I. No prepaid tuition contract or savings trust account shall be assigned for the benefit of creditors, used as security or collateral for any loan, or otherwise subject to alienation, sale, transfer, assignment, pledge, encumbrance, or charge.
J. The board's decision on any dispute, claim, or action arising out of or relating to a prepaid tuition contract or savings trust agreement made or entered into pursuant to this chapter or benefits under such prepaid tuition contract or savings trust agreement shall be considered a case decision as defined in § 2.2-4001 and all proceedings related to such dispute, claim, or action shall be conducted pursuant to Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. Judicial review shall be provided exclusively pursuant to Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act.
1994, c. 661, § 23-38.81; 1995, c. 315; 1997, cc. 785, 861; 1999, cc. 485, 518; 2000, cc. 382, 400; 2015, cc. 227, 311; 2016, cc. 588, 639; 2019, cc. 803, 804; 2020, c. 923.
The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.
§ 34-26. Poor debtor's exemption; exempt articles enumerated (>$35k possible additional specific exemptions on personal property & more).
Per VA Law as of 3/26/24:
In addition to the exemptions provided in Chapter 2 (§ 34-4 et seq.), every householder shall be entitled to hold exempt from creditor process the following enumerated items:
1. The family Bible.
1a. Wedding and engagement rings.
2. Family portraits and family heirlooms not to exceed $5,000 in value.
3. (i) A lot in a burial ground, and (ii) any preneed funeral contract not to exceed $5,000.
4. All wearing apparel of the householder not to exceed $1,000 in value.
4a. All household furnishings including, but not limited to, beds, dressers, floor coverings, stoves, refrigerators, washing machines, dryers, sewing machines, pots and pans for cooking, plates, and eating utensils, not to exceed $5,000 in value.
4b. Firearms, not to exceed a total of $3,000 in value.
5. All animals owned as pets, such as cats, dogs, birds, squirrels, rabbits and other pets not kept or raised for sale or profit.
6. Medically prescribed health aids.
7. Tools, books, instruments, implements, equipment, and machines, including motor vehicles, vessels, and aircraft, which are necessary for use in the course of the householder's occupation or trade not exceeding $10,000 in value, except that a perfected security interest on such personal property shall have priority over the claim of exemption under this section. A motor vehicle, vessel or aircraft used to commute to and from a place of occupation or trade and not otherwise necessary for use in the course of such occupation or trade shall not be exempt under this subdivision. "Occupation," as used in this subdivision, includes enrollment in any public or private elementary, secondary, or career and technical education school or institution of higher education.
8. Motor vehicles, not held as exempt under subdivision 7, owned by the householder, not to exceed a total of $6,000 in value, except that a perfected security interest on a motor vehicle shall have priority over the claim of exemption under this subdivision.
9. Those portions of a tax refund or governmental payment attributable to the Child Tax Credit or Additional Child Tax Credit pursuant to § 24 of the Internal Revenue Code of 1986, as amended, or the Earned Income Credit pursuant to § 32 of the Internal Revenue Code of 1986, as amended.
10. Unpaid spousal or child support.
The value of an item claimed as exempt under this section shall be the fair market value of the item less any prior security interest.
The monetary limits, where provided, are applicable to the total value of property claimed as exempt under that subdivision.
The purchase of an item claimed as exempt under this section with nonexempt property in contemplation of bankruptcy or creditor process shall not be deemed to be in fraud of creditors.
No officer or other person shall levy or distrain upon, or attach, such articles, or otherwise seek to subject such articles to any lien or process. It shall not be required that a householder designate any property exempt under this section in a deed in order to secure such exemption.
Code 1919, § 6552; 1934, p. 371; 1936, p. 322; 1956, c. 637; 1970, c. 428; 1975, c. 466; 1976, c. 150; 1977, cc. 253, 496; 1990, c. 942; 1992, c. 644; 1993, c. 150; 2001, c. 483; 2002, c. 88; 2011, cc. 761, 835; 2015, c. 686.
The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.
§ 34-27. Additional articles exempted to householder engaged in agriculture.
Per VA Law as of 3/26/24:
If the householder be at the time actually engaged in the business of agriculture, there shall also be exempt from such levy or distress, while he is so engaged, to be selected by him or his agent, the following articles, or so many thereof as he may have, to wit: a pair of horses or mules unless he selects or has selected a horse or mule under § 34-26, in which case he shall be entitled to select under this section only one, with the necessary gearing, one wagon or cart, one tractor, not exceeding in value $3,000, two plows, one drag, one harvest cradle, one pitchfork, one rake, two iron wedges and fertilizer and fertilizer material not exceeding in value $1,000. It shall not be required that a householder designate any property exempt under this section in a deed in order to secure such exemption.
Code 1919, § 6533; 1932, p. 324; 1956, c. 637; 1970, c. 428; 1977, c. 496; 1993, c. 150.
The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.
§ 34-29. Maximum portion of disposable earnings subject to garnishment.
Per VA Law as of 3/26/24:
"(a) Except as provided in subsections (b) and (b1), the maximum part of the aggregate disposable earnings of an individual for any workweek that is subjected to garnishment may not exceed the lesser of the following amounts:
(1) Twenty-five percent of his disposable earnings for that week; or
(2) The amount by which his disposable earnings for that week exceed 40 times the federal minimum hourly wage prescribed by 29 U.S.C. § 206(a)(1) or the Virginia minimum hourly wage prescribed by § 40.1-28.10, whichever is greater, in effect at the time earnings are payable.
In the case of earnings for any pay period other than a week, the State Commissioner of Labor and Industry shall by regulation prescribe a multiple of the federal or Virginia minimum hourly wage equivalent in effect to that set forth in this section.
(b) The restrictions of subsection (a) do not apply in the case of:
(1) Any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure that is established by state law, affords substantial due process, and is subject to judicial review.
(2) Any order of any court of bankruptcy under Chapter XIII of the Bankruptcy Act.
(3) Any debt due for any state or federal tax.
(b1) The maximum part of the aggregate disposable earnings of an individual for any workweek that is subject to garnishment to enforce any order for the support of any person shall not exceed:
(1) Sixty percent of such individual's disposable earnings for that week; or
(2) If such individual is supporting a spouse or dependent child other than the spouse or child with respect to whose support such order was issued, 50 percent of such individual's disposable earnings for that week.
The 50 percent specified in subdivision (2) shall be 55 percent and the 60 percent specified in subdivision (1) shall be 65 percent if and to the extent that such earnings are subject to garnishment to enforce an order for support for a period that is more than 12 weeks prior to the beginning of such workweek.
(c) No court of the Commonwealth and no state agency or officer may make, execute, or enforce any order or process in violation of this section.
The exemptions allowed herein shall be granted to any person so entitled without any further proceedings.
(d) For the purposes of this section:
(1) The term "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, payments to an independent contractor, or otherwise, whether paid directly to the individual or deposited with another entity or person on behalf of and traceable to the individual, and includes periodic payments pursuant to a pension or retirement program,
(2) The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld, and
(3) The term "garnishment" means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.
(e) Every assignment, sale, transfer, pledge, or mortgage of the wages or salary of an individual that is exempted by this section, to the extent of the exemption provided by this section, shall be void and unenforceable by any process of law.
(f) No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.
(g) A depository wherein earnings have been deposited on behalf of and traceable to an individual shall not be required to determine the portion of such earnings that are subject to garnishment.
Code 1919, § 6555; 1928, p. 348; 1938, p. 574; 1948, p. 489; 1952, c. 432; 1954, cc. 143, 379; 1958, cc. 217, 417; 1960, c. 498; 1970, c. 428; 1978, c. 564; 1992, c. 674; 1996, c. 330; 2005, c. 286; 2021, Sp. Sess. I, c. 8.
The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired."
§ 64.2-311. $20k Homestead allowance for Surviving Spouse or Orphaned Surviving Minor Children
Per VA Law as of 3/26/24:
A. In addition to any other right or allowance under this article, a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $20,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $20,000, divided by the number of minor children.
B. The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.
C. The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $20,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent's will or by intestate succession, equals the sum of $20,000.
D. If the surviving spouse claims and receives an elective share of the decedent's estate under §§ 64.2-302 through 64.2-307, the surviving spouse shall not have the benefit of any homestead allowance. If the surviving spouse claims and receives an elective share of the decedent's estate under Article 1.1 (§ 64.2-308.1 et seq.), the homestead allowance shall be in addition to any benefit or share passing to the surviving spouse by way of elective share.
1981, c. 580, § 64.1-151.3; 1990, c. 831; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2016, cc. 187, 269; 2017, cc. 32, 82.
The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.
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About the Author: Adam Garrett - 3rd Generation REALTOR®
Adam is the 3rd generation in a line of award-winning real estate agents serving SE VA. He has served full time at Garrett Realty Partners since May 2014 when he joined the marketing department before transitioning to full-time sales to assist buyers and sellers in February 2015. He believes that an educated buyer or seller makes the best decisions, & is dedicated to helping with that both digitally & on-site physically for buyers & sellers. He's also available for referrals to real estate agents around the globe. In several capacities, his resources & direct offerings for assisting sellers & assisting buyers are either unmatched or are top 1% for the SE VA area, and in some cases, nationwide. Not stopping after closing, he also provides information for tenants, landlords, & homeowners.
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