Georgia Statutory Exemptions and Homestead

[Riser Adkisson LLP]

GA has opted out of the federal bankruptcy exemptions. However, certain federal bankruptcy exemptions may apply anyway, see Fn. 1.

Exemption for Tax-Qualified Retirement Plans, IRAs & Roth IRAs, see Fn. 2: 100% for undistributed interests; Georgia Code Ann. § 18-4-22 per Distributions exempt to the extent reasonably necessary for support; No Roth IRA protection. Georgia Code Ann. § 44-13-100(a)(2.1).

Homestead Exemption, see Fn. 3: $10,000 single / $20,000 married per Georgia Code Ann. § 44-13-100(a)(1). Note: S.B. 133, which would raise the exemption to $50,000 / $100,000, was reported favorably by the Senate Judiciary Committee on 3/1/07.

Exemption for Life Insurance Cash Value from Claims of Policyowner's Creditors, see Fn. 4: $2,000 per Georgia Code Ann. § 44-13-100(a)(9). Additionally, § 33-25-11 provides that cash values are protected from creditors of insured, without specifying whether this includes owner-insured

Exemption for (Non-IRA / Non-ERISA) Annuity Cash Value and Payments from Claims of Owner's Creditors, see Fn. 5: ? per Georgia Code Ann. § 33-28-7 provides that annuity proceeds are protected from creditors of beneficiary, without specifying whether this includes owner-beneficiary

Explanations and Cautions

Fn. 1. State Opt-Out

The federal bankruptcy laws provide their own creditor exemptions. However, states may "opt out" of the federal exemptions and instead require that debtors filing for bankruptcy in a federal bankruptcy district within that state apply the state exemptions instead. Note, however, that some federal bankruptcy provisions will always trump contrary state law no matter what.

Fn. 2. Exemption for Tax-Qualified Retirement Plans, IRAs & Roth IRAs

See more important discussion on ERISA Protection at viewtopic.php?f=105&t=1175 and for IRAs and Qualified Accounts at viewtopic.php?f=78&t=1176

Federal Bankruptcy-Only Exemption for Tax-Qualified Retirement Plans, IRAs & Roth IRAs: 100% exclusion for ERISA qualified plans; 100% exemption for SEP-IRA and SIMPLE IRA with no cap; 100% exemption for IRAs and Roth IRAs with $1MM cap (cap does not apply to rollover IRAs), per 11 U.S.C. § 522(d)(12).

Fn. 3. Homestead

See important discussion of the Homestead Exemption at viewtopic.php?f=76&t=261&p=269#p269

Federal Bankruptcy-Only Homestead Exemption: $20,200 per 11 U.S.C. § 522(d)(1).

Fn. 4. Exemption for Life Insurance Cash Value from Claims of Policyowner's Creditors

See important discussion of Life Insurance Exemptions at viewtopic.php?f=77&t=1173

Federal Bankruptcy-Only Exemption for Life Insurance Cash Value from Claims of Policyowner's Creditors: $10,775 per 11 U.S.C. § 522(d)(8)

Fn. 5. Exemption for (Non-IRA / Non-ERISA) Annuity Cash Value and Payments from Claims of Owner's Creditors

See important discussion of Annuity Exemptions at viewtopic.php?f=77&t=1174

Federal Bankruptcy-Only Exemption for (Non-IRA / Non-ERISA) Annuity Cash Value and Payments from Claims of Owner's Creditors: Payments from an annuity on account of illness, disability, death, age, or length of service are exempt to the extent reasonably necessary for the support of the debtor and dependents, per 11 U.S.C. § 522(d)(10)(E).

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Read more in the book by Jay Adkisson and Chris Riser entitled: Asset Protection: Concepts & Strategies (McGraw-Hill 2003) with main website http://www.assetprotectionbook.com and blog at http://www.assetprotectionblog.com see also http://www.jayadkisson.com and http://www.risad.com