BENEFIT OF THE HOMESTEAD EXEMPTION AND BANKRUPTCY’S FRESH START

Shawn C. Gearhart, Barry University

Abstract

This paper explores what the term "benefit of homestead exemption" means in Article X of the Florida Constitution in relation to bankruptcy exemption laws. The 11th Circuit Court of Appeals recently certified the following question to the Florida Supreme Court: “Whether a debtor who elects not to claim a homestead exemption and indicates an intent to surrender the property is entitled to the additional exemptions for personal property under Fla. Stat. § 222.25(4).” This paper explores why the Court should rule why mere ownership does not expressly confer the benefit of a homestead exemption, especially in relation to bankruptcy laws.