Non-Domiciliary Entitled to Claim Federal Exemptions

In the pre-BAPCPA decision of In re Arispe, 289 B.R. 245 (Bankr.S.D.Fla.)(Mark, C.J.), the court held that a debtor who is a resident in Florida but not a domicile of Florida is entitled to claim the Section 522(d) federal exemptions as the Florida opt-out statute only applies to those domiciled in Florida.

The debtor was resident of Florida but not a domicile of Florida or any State as he was neither a U.S. citizen nor a permanent resident of the U.S. and therefore not able to legally form the intent to remain permanently which is an element of domicile. The Trustee argued that the Florida opt-out statute precluded the Debtor from utilizing the section 522(d) Federal exemptions. The Florida opt-out statute provides that residents of Florida are not entitled to utilize the federal exemptions provided in section 522(d). Florida Statutes, Section 222.20.

The court held that the "point of departure" in this analysis is Section 522(b) and not the Florida opt-out statute. The court noted that Section 522(b)(1) allows a debtor to utilize the federal exemptions "unless the State law that is applicable to the debtor under paragraph (2)(A)....specifically does not authorize.." Paragraph (2)(A) triggers reference to the State law at the place at which the debtor's domicile was located during the 180 days prior to filing or the greater part of the 180 day period. Since the Debtor was not domiciled in Florida or any State during the 180 days prior to filing of the petition, reference to Florida or any other State's opt-out is not initiated to not authorize the debtor to utilize the exemptions of Section 522(d) Federal Exemptions.

The Arispe case was subsequently followed in In re Goldsmith, 2003 WL 295690 (Bkrtcy.S.D.Fla.)(Cristol, J.).

It may be noted that a new provision added by BAPCPA to Section 522(b) may have been inspired by the Arispe decision. New Section 522(b) hanging paragraph provides that "If the effect of the domiciliary requirement under subparagraph [3](A) is to render the debtor ineligible for any exemption, the debtor may elect to exempt property that is specified under subsection (d)."Jordan E. Bublick is a Miami Personal Bankruptcy Lawyer with over 25 years of experience in filing chapter 13 and chapter 7 bankruptcies. Miami Personal Bankruptcy Lawyer Jordan E. Bublick has filed over 8,000 chapter 13 and chapter 7 cases.