2. (§3.63) Effect of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
In an attempt to reduce exemption pre-planning, 11 U.S.C. § 522(b)(3)(A) now provides that exempt property is that which is exempt under the law applicable on the filing date at the place in which the debtor’s domicile has been located (if in a single state) for the 730 days immediately preceding the filing date. If the debtor has lived in more than one state during this 730-day period, exemptions are based on the place where the debtor’s domicile was located for the 180 days immediately preceding the 730-day period or for the longer portion of this 180-day period than in any other place. If the effect of this domiciliary requirement is to render the debtor ineligible for any exemption, the debtor may then elect to exempt property under the federal exemptions in § 522(d). Because of this peripatetic exemption scheme, debtors’ attorneys will have to make decisions about exemptions available under the laws of other states. Missouri lawyers do not generally concern themselves with the federal exemptions under § 522(d), Missouri having opted out in favor of the state exemptions, § 513.427, RSMo 2000. See also §3.59, supra. Counsel should use caution in all cases in which another state’s exemptions are used, and if that state has not opted out, counsel must give special attention to the federal exemptions in §...
