Delafield - Homestead

The Homestead Exemption

An “exemption” protects property from being seized by a creditor who is attempting to collect a judgment. An example would be a creditor attempting to garnish a bank account or garnish a pay check or wages. An exemption can be created by federal law, and if the property is in Virginia, the exemption can arise under the laws of the Commonwealth of Virginia. One exemption available to Virginia residents is the Virginia Homestead exemption. The exemption is sometimes called a wildcard exemption because it applies to many types of property. Every householder is entitled to hold exempt from creditor process arising out of a debt personal property (including cash, bank accounts), not exceeding $5,000 in value or, if the householder is 65 years of age or older, not exceeding $10,000 in value. In addition, real or personal property used as the principal residence of the householder or the householder's dependents not exceeding $25,000 in value. Married couples who own their personal residence jointly may thus be able to protect up to $50,000 of equity in their principal residence. Also, upon a showing that a householder supports dependents (including foster children, adult children with special needs, and elderly parents), the householder shall be entitled to hold exempt additional property of $500 in value for each dependent. Married couples are often permitted to combine their homestead exemptions to protect marital property, but only one spouse can claim the extra dependent exemption. These dollar amounts can increase after April 1, 2027. There are additional details, requirements, and benefits for certain veterans. The exemption cannot bu used as a defense against some debts such as child support. Because claiming the exemption is complicated, most individuals will benefit from the assistance of an attorney.

You are not required to be a homeowner to benefit from a homestead deed. The exemption applies to many types of property and can even be used to protect equity in an automobile or funds on deposit in a bank account.

In order to secure the benefit of the homestead exemptions without filing bankruptcy, the householder, by a writing signed by him and duly admitted to record, shall declare his intention to claim such benefit and select and set apart the property to be held by the householder as exempt, and describe the same with reasonable certainty, affixing to the description his cash valuation of the property so selected and set apart. The Virginia Code states the following form, or one which is substantially similar, shall be used: (https://law.lis.virginia.gov/vacode/title34/chapter2/section34-6/)

HOMESTEAD DEED

Name of Householder ............ (last name capitalized and underlined

)Name of title holder of record (if different) ............

Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1? __ Yes __ No

Address of Householder ............

Name(s) and age(s) of dependent(s) ............

County/city/state in which real property claimed as exempt is located ............

Description of property claimed as exempt ............

Value of property described above ............a

Number of homestead deeds that have been filed by the Householder ............

Exemption amount previously claimed on prior homestead deeds ............

List the jurisdictions where previous homestead deeds were filed ....................

This homestead deed is executed and sealed on this _____ day of __________, 2026.

___________________________(Seal)

COMMONWEALTH OF VIRGINIA

CITY / COUNTY OF _______________, to wit:

I, __________________, do hereby certify that the foregoing instrument was acknowledged before me on Monday, February ___, 2026, by __________.

____________________________

Notary Public

My commission expires: _________________ Notary No.: __________

law.lis.virginia.gov/vacode/title34/chapter2/section34-6/

The homestead exemption and estate planning

Homeowners may wish to use a general homestead exemption described above to shield a portion their home’s value, or other assets, as part estate planning so that those assets remain secure as much as possible. The homestead deed should contain sufficient detail to identify the asset being protected, and in the case of one's primary residence, the best practice would be to include a full legal description and tax id number. Next you must identify the proper Circuit Court where the homestead deed needs to be filed. (and there may be more than one). The third step is to draft a cover page if required by that particular Circuit Court or courts. The clerk will then charge a filing fee. The homestead deed should be filed before any judgments are recorded in the Circuit Court, however, if a creditor wins the race to the courthouse, you can still file the homestead deed and possible receive some benefit depending on the relevant facts. As always, a householder (homeowner or debtor) will benefit from the assistance of an attorney.

Probate Homestead Exemption

In addition to the general homestead exemption, a surviving spouse of a decedent who was domiciled in Virginia receives protection under Virginia's probate law. In addition to any other right or allowance under Article 2 of the probate law (Exempt Property and Allowances), a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $25,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $25,000, divided by the number of minor children. The probate homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property. The probate homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $25,000, then the surviving spouse or minor children are entitled to a homestead allotment. There are time limits for claiming the exemption.

The homestead deed is likely not sufficient by itself. A through estate plan will also consider owning the primary marital residence as tenants by the entirety. Likewise a through estate plan will consider using a transfer on death deed, an irrevocable trust, a revocable living trust, a last will and testament, a power of attorney, and an advanced medical care directive also known as a living will or a medical care power of attorney.

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