In In re Antman, 2024 WL 4786241, Ch. 13 Case No. 23-60317-ejc (Bankr. S.D. Ga. Nov. 14, 2024), the debtor’s father died in 1996 and in his will left his house to debtor and her three siblings in equal shares. Debtor and her husband had lived in the house since 1999. Debtor filed a Chapter 13 case in 2023 and claimed a $43,000 homestead exemption (the “double exemption”) in the house pursuant to OCGA §44-13-100(a)(1). The Trustee objected to the exemption, arguing that she was only entitled to the $21,500 exemption because she only held a partial ownership interest in the house.
Section 44-13-100(a)(1) provides that a debtor may exempt: “(1) The debtor’s aggregate interest, not to exceed $21,500.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $43,000.00.”
The Trustee’s objection hinged on the argument that the title to the house was not in “one of two spouses who is a debtor;” rather, the debtor only owned a fractional interest with her siblings.
Here, the Debtor has claimed a $43,000.00 double exemption in the real property devised to her, and to her three siblings, by their late father. The Trustee does not dispute that the Debtor uses the property as her residence. Nor does he dispute that the Debtor is entitled to a $21,500.00 homestead exemption. Instead, the Trustee makes essentially two arguments. First, he argues that the plain language of the Georgia exemption statute prevents the Debtor from claiming the double exemption because she has only a partial ownership interest in the residence. Second, he argues that the purpose of the double exemption statute—which, he says, is to protect a debtor’s non-filing spouse’s equitable interest in a residence—is not implicated here because the Debtor’s husband has no equitable interest to protect… Thus, the question before the Court is whether O.C.G.A. §44-13-100(a)(1) requires sole ownership of the homestead or permits a debtor with only a partial interest to claim the double exemption.
Judge Coleman disagreed with the Trustee and held that the statute did not require that the property be titled solely in a debtor’s name to trigger the double exemption.
The Trustee is wrong: nothing in O.C.G.A. §44-13-100(a)(1) requires the debtor to have sole title to the homestead to claim the double exemption. By its terms, the statute requires only that “title to property used for the [homestead] exemption” be “in one of two spouses who is a debtor.” O.C.G.A. § 44-13-100(a)(1). Contrary to the Trustee’s assertion, the word “solely” does not appear anywhere in the homestead exemption provision, and the Court will not read that word into the statutory text. What the statute does say is that title must be in the debtor as opposed to the debtor’s non-filing spouse.
The Court also held that the double exemption does not require the non-filing spouse to have an equitable interest in the property. In doing so, Judge Coleman disagrees with the analysis of Judge Diehl in the Northern District in In re Neary, No. 03-97808, 2004 WL 3222872 (Bankr. N.D. Ga. Apr. 21, 2004) and instead relies upon Judge Walker’s opinion and analysis in In re Burnett, 303 B.R. 684, 686 (Bankr. M.D. Ga. 2003).
Here, as previously discussed, the plain language of O.C.G.A. § 44-13-100(a)(1) permits the Debtor to claim the $43,000.00 double exemption. She is a married person, title to the property is in her name rather than in her spouse’s, and she and her husband use the property as their residence. Nothing in the statute requires the Debtor’s husband to have an equitable interest in the property, and, like Judge Walker , the Court declines to read such a requirement into the text “based on one party’s notion of fairness in a particular set of unusual circumstances.”
Judge Coleman’s opinion includes a detailed history of the purpose of the homestead exemption and authority in Georgia courts, and is worth a read to understand his findings and ruling.
Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and other parties in Bankruptcy cases for over 25 years. You can contact Scott at 404-815-0164 or scott@scottriddlelaw.com. For more information, click here.