Sally Profeta

Document Type

Research Memorandum

Publication Date




The homestead exemption is a longstanding doctrine in American jurisprudence that protects the interest debtors have in their dwelling when filing for bankruptcy. Section 522(d)(1) of the Bankruptcy Code’s federal exemption scheme provides debtors with the opportunity to preserve the interest they have in their residence, with outside limits on the amount that interest is valued. However, courts are divided on the interpretation of the word “residence,” and have struggled to determine whether “residence” requires actual occupancy of the claimed property at the date of filing.

There are two cannons of statutory interpretation that are used in this context, one known as the “plain meaning approach” and the other “the residence as homestead approach.” The plain meaning approach employs a broader and more liberal interpretation of the statute, which could potentially permit a debtor to claim an exemption on property other than his or her primary residence; whereas the residence as homestead approach (the majority view) is much narrower, and this theory specifically construes the word “residence” interchangeably with the word “homestead” as defined by the state in which the property sits. Although the word “residence” is only one of many in the statute, it has led to significantly different applications of the federal homestead exemption.

This Article is divided into five parts: Part I will discuss the exemption schemes available to a debtor when filing a bankruptcy petition; part II will explore the purpose and effect of the federal homestead exemption; part III will explain the plain meaning approach to defining “residency” under section 522(d)(1) of the Bankruptcy Code; part IV will explain the residence as homestead approach; and finally, Part IV will address the effects and implications each approach.


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