West Virginia
Bankruptcy in West Virginia (2026): Exemptions & Means Test
Independently fact-checked against primary sources (last audited August 17, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 17, 2026. · 4 primary sources cited on this page. How we verify our legal content
West Virginia bankruptcy protections are set out in a single statute that also gives filers a choice between two exemption systems. Contrary to a common assumption, West Virginia has not opted out of the federal bankruptcy exemptions: under W. Va. Code 38-10-4(k), a debtor domiciled in the state may choose either West Virginia's own exemptions or the federal list in 11 U.S.C. 522(d). The figures below are current as of mid-2026, and you should confirm the latest amounts before relying on them.
This page is general legal information, not legal advice. It is part of our Bankruptcy by State series.
Does West Virginia use state or federal bankruptcy exemptions?
West Virginia gives filers a choice, and this is the point most older summaries get wrong. The state's exemption statute, W. Va. Code 38-10-4, sets out the West Virginia exemptions, but subsection (k) expressly allows an individual debtor domiciled in the state to instead claim the property specified under 11 U.S.C. 522(d), the federal bankruptcy exemptions. In other words, West Virginia has not exercised the opt-out authority in 522(b)(2). A filer chooses one system or the other and cannot mix categories from both.
In practice the two lists are similar in structure, so the choice often comes down to specific assets. The West Virginia homestead is larger than the federal homestead, which can favor homeowners, while the federal set has its own wildcard that some renters prefer. Federal nonbankruptcy protections like Social Security apply regardless of which list you pick.
West Virginia homestead exemption
West Virginia's homestead is found in W. Va. Code 38-10-4(a). It protects a debtor's interest, not to exceed $35,000 in value, in real or personal property that the debtor or a dependent uses as a residence, in a cooperative that owns such a residence, or in a burial plot for the debtor or a dependent. Unlike states that limit the homestead to real estate, West Virginia's version can apply to personal property used as a home, such as a manufactured home.
Because the exemption belongs to each individual debtor, a married couple who jointly own their residence and file a joint case can each claim the $35,000 homestead, protecting up to $70,000 of equity in the property. The statute also includes a narrow exception for physicians, and it is narrower than it first appears. Under 38-10-4(a), the cap rises above $35,000, to no more than $250,000 per household, only where the debtor is a physician licensed to practice medicine in West Virginia, the bankruptcy was commenced in part due to a verdict or judgment entered in a medical professional liability action, and the physician carries current medical malpractice insurance of at least $1 million for each occurrence. All three conditions must be met, so a physician filing an ordinary consumer bankruptcy is limited to the same $35,000 as everyone else.
Vehicle, wildcard, and personal-property exemptions
West Virginia's list mirrors the federal categories with its own dollar figures:
- Motor vehicle: up to $7,500 of equity in one motor vehicle under 38-10-4(b).
- Household goods: up to $800 per item in furnishings, goods, clothing, appliances, books, animals, crops, or musical instruments held for personal or household use, capped at $16,000 in the aggregate under 38-10-4(c).
- Jewelry: up to $2,000 held for personal, family, or household use under 38-10-4(d).
- Wildcard: up to $800 plus any unused amount of the homestead exemption under 38-10-4(e). Because a renter or low-equity homeowner may have most of the $35,000 homestead unused, this can be a substantial flexible exemption.
- Tools of trade: up to $3,000 in implements, professional books, or tools of the trade under 38-10-4(f).
- Health aids, unmatured life insurance, and support payments reasonably necessary for the debtor and dependents are also protected, and federal nonbankruptcy protections apply on top.
The Chapter 7 means test in West Virginia
The means test screens Chapter 7 filings for a presumption of abuse. It first compares your household's current monthly income, annualized, against the median family income for a West Virginia household of the same size. If your income is at or below the West Virginia median, you generally clear this step. If it is above, you complete the longer calculation that deducts allowed living expenses to see whether you have disposable income that should fund a Chapter 13 plan.
The U.S. Trustee Program publishes the median figures. For cases filed on or after April 1, 2026, the West Virginia median family income is:
| Household size | West Virginia median annual income |
|---|---|
| 1 | $63,908 |
| 2 | $68,592 |
| 3 | $92,050 |
| 4 | $93,672 |
Add $11,100 for each additional person beyond four. These figures apply only to cases filed on or after April 1, 2026, and the U.S. Trustee Program revises them about twice a year, so confirm the figures for your filing date.
Chapter 7 vs. Chapter 13 in West Virginia
Chapter 7 is a liquidation in which a trustee may sell non-exempt property to pay creditors. Because West Virginia's homestead and wildcard together can protect a meaningful amount of equity, many filers keep everything they own, and most remaining unsecured debt like credit cards and medical bills is discharged within a few months.
Chapter 13 is a reorganization for people with regular income. You keep your property and repay part or all of your debt over three to five years. It is often used by homeowners who are behind on a mortgage, because the plan can cure the arrears over time and stop a foreclosure, and by filers whose income is above the median.
In both chapters, filing triggers the automatic stay under 11 U.S.C. 362, which immediately stops most collection activity, including foreclosure, wage garnishment, repossession, and collection calls.
Where you file bankruptcy in West Virginia
West Virginia has two federal bankruptcy districts. The U.S. Bankruptcy Court for the Northern District of West Virginia covers the northern counties, with locations in Wheeling, Clarksburg, Elkins, and Martinsburg. The U.S. Bankruptcy Court for the Southern District of West Virginia covers the southern counties, with locations in Charleston, Beckley, Huntington, and Bluefield. You file in the district where you have lived for the greater part of the last 180 days. Federal law requires approved credit counseling before you file and a debtor-education course before discharge.
What bankruptcy can and cannot do
Bankruptcy discharges most unsecured debts, but several categories generally survive: most student loans (absent a separate showing of undue hardship), recent income taxes, child support and alimony, and debts from fraud or willful injury. Secured debts like a mortgage or car loan continue if you keep the collateral and keep paying.
Because West Virginia lets you choose between two exemption systems, comparing the state and federal lists against your specific assets is a key step. For that comparison, have a West Virginia lawyer set both lists against your assets in a free bankruptcy evaluation (attorney advertising).
Frequently Asked Questions
Does West Virginia use state or federal bankruptcy exemptions?
West Virginia lets filers choose. W. Va. Code 38-10-4(k) authorizes a debtor domiciled in the state to claim the federal exemptions in 11 U.S.C. 522(d) instead of the West Virginia list, so the state did not opt out. You must pick one system and cannot combine the two. Federal nonbankruptcy protections like Social Security apply either way.
What is the homestead exemption in West Virginia?
West Virginia's homestead under W. Va. Code 38-10-4(a) protects up to $35,000 of equity in real or personal property used as a residence, including a burial plot. A married couple who jointly own their home and file together can each claim it, protecting up to $70,000.
Did West Virginia opt out of the federal bankruptcy exemptions?
No. Although many guides describe West Virginia as an opt-out state, W. Va. Code 38-10-4(k) lets a debtor domiciled in West Virginia choose the federal exemptions under 11 U.S.C. 522(d). West Virginia filers therefore may use either the state or the federal list, but not a mix of both.
What is the West Virginia median income for the means test?
For cases filed on or after April 1, 2026, the West Virginia median family income is $63,908 for 1 person, $68,592 for 2, $92,050 for 3, and $93,672 for 4, adding $11,100 for each additional person. The U.S. Trustee Program updates these figures periodically.
How much car equity can I protect in a West Virginia bankruptcy?
West Virginia exempts up to $7,500 of equity in one motor vehicle under 38-10-4(b). If a vehicle has more equity, the wildcard, which is $800 plus any unused homestead, can sometimes be applied to the excess.
Will I lose my house if I file bankruptcy in West Virginia?
West Virginia's homestead protects up to $35,000 of equity, or up to $70,000 for a jointly owned home in a joint case, so many homeowners with modest equity keep their homes in Chapter 7 if they stay current on the mortgage. A homeowner with more equity should consider whether Chapter 13 is a better fit.
Where do I file for bankruptcy in West Virginia?
West Virginia has two districts. The Northern District covers areas including Wheeling, Clarksburg, Elkins, and Martinsburg, and the Southern District covers areas including Charleston, Beckley, Huntington, and Bluefield. You file in the district where you have lived for most of the past 180 days, after completing approved credit counseling.
What debts cannot be discharged in a West Virginia bankruptcy?
Most student loans (absent a showing of undue hardship), recent income taxes, child support, alimony, and debts arising from fraud or willful injury generally are not discharged. Most credit-card and medical debt usually is.
Updates
Clarified that income at or below the state median means the presumption of abuse does not arise under the Chapter 7 means test, not that a filer qualifies for Chapter 7.
Clarified that West Virginia's enhanced homestead exemption for physicians, up to $250,000 per household, applies only when the bankruptcy was commenced in part due to a verdict or judgment in a medical professional liability action and the physician carries at least $1 million per occurrence in current malpractice coverage.
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
Governing law re-checked for recent changes
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Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
West Virginia Code
§ 38-10-4Exemptions of property in bankruptcy proceedings.In forcecited in 3 of our articles
Any person who files a petition under the federal bankruptcy law may exempt from property of the estate in a bankruptcy proceeding the following property: (a) The debtor’s interest, not to exceed $35,000 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: Provided, That when the debtor is a physician licensed to practice medicine in this state under §30-3-1 et seq. or §30-14-1 et seq. of this code, and has commenced a bankruptcy proceeding in part due to a verdict or judgment entered in a medical professional liability action, if the physician has current medical malpractice insurance in the amount of at least $1 million for each occurrence, the debtor physician’s interest that is exempt under this subdivision may exceed $35,000 in value but may not exceed $250,000 per household. (b) The debtor’s interest, not to exceed $7,500 in value, in one motor vehicle.
Official text (excerpt) · last checked 2026-09-06 · Read the full text in our law library · Verify at code.wvlegislature.gov
Cited in 13 court opinions in our collectionLatest citing opinion in our collection: 2025
Opinions citing this section in our collection:
- In Re Morrell (United States Bankruptcy Court, N.D. West Virginia 2008, 394 B.R. 405)“…inia has created its own scheme of bankruptcy exemptions in W. Va.Code § 38-10-4, which are different from the exemption…”
- In Re Catherine P. Morehead Raymond A. Morehead, Debtors. Martin P. Sheehan, Trustee for the Bankruptcy Estate of Catherine P. Morehead and Raymond Morehead v. Raymond A. Morehead, and the Lincoln National Life Insurance Company, in Re Catherine P. Morehead Raymond A. Morehead, Debtors. Martin P. Sheehan, Trustee for the Bankruptcy Estate of Catherine P. Morehead and Raymond Morehead v. Raymond A. Morehead Catherine P. Morehead (Court of Appeals for the Fourth Circuit 2002, 283 F.3d 199)“…nce policy is fully exempt from the bankruptcy estate under W. Va.Code § 38-10-4(j)(3) or partially exempt "to the exten…”
- Harkins v. Oswald (In Re Oswald) (United States Bankruptcy Court, N.D. West Virginia 1988, 90 B.R. 218)“…ty up to Seven Thousand Five Hundred Dollars ($7,500) under W.Va.Code § 38-10-4(a). *224 DOES THE PRO…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: West Virginia Homestead Exemption: Amount, Deadline and How to Apply
United States Code Title 11
§ 522ExemptionsIn forcecited in 54 of our articles
In this section— “dependent” includes spouse, whether or not actually dependent; and “value” means fair market value as of the date of the filing of the petition or, with respect to property that becomes property of the estate after such date, as of the date such property becomes property of the estate. Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (2) or, in the alternative, paragraph (3) of this subsection. In joint cases filed under section 302 of this title and individual cases filed under section 301 or 303 of this title by or against debtors who are husband and wife, and whose estates are ordered to be jointly administered under Rule 1015(b) of the Federal Rules of Bankruptcy Procedure, one debtor may not elect to exempt property listed in paragraph (2) and the other debtor elect to exempt property listed in paragraph (3) of this subsection. If the parties cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (2), where such election is permitted under the law of the jurisdiction where the case is filed.
Official text (excerpt) · last checked 2026-09-16 · Read the full text in our law library · Verify at uscode.house.gov
Cited in 7,574 court opinions in our collectionLatest citing opinion in our collection: 2026
In the courts (editorial summary, independently checked):Taylor v. Freeland & Kronz (1992) held that a trustee who does not object within the 30-day period cannot later challenge an exemption claimed under 522(l), even one with no statutory basis. Owen v. Owen (1991) held that 522(f) lien avoidance is not defeated by a state exemption written to exclude lien-encumbered property.
Opinions citing this section in our collection:
- Taylor v. Freeland & Kronz (Supreme Court of the United States 1992, 503 U.S. 638)✓A Chapter 7 debtor listed the entire proceeds of her TWA discrimination suit as exempt and the trustee let the 30-day objection window lapse; the Court held that under § 522(l) the property is exempt once no one objects, even absent a colorable statutory basis.
- Patterson v. Shumate (Supreme Court of the United States 1992, 504 U.S. 753)✓A debtor's $250,000 ERISA pension interest was excluded from his estate under § 541(c)(2); answering a surplusage argument, the Court read § 522(d)(10)(E) as exempting a broader set of plans, and expressly declined to decide whether § 522(b)(2)(A) also applied.
- Owen v. Owen (Supreme Court of the United States 1991, 500 U.S. 305)✓An ex-wife's judgment lien attached to a Florida condo before state law made it a homestead; the Court held § 522(f) measures impairment against the exemption the debtor would have had but for the lien, so Florida's carve-out for prior liens did not defeat avoidance.
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Bankruptcy Laws by State (2026): Exemptions & Means Test, Bankruptcy in Alabama (2026): Exemptions & Means Test, Bankruptcy in Alaska (2026): Exemptions & Means Test
§ 362Automatic stayIn forcecited in 54 of our articles
Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of— the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; any act to create, perfect, or enforce any lien against property of the estate; any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; any act to…
Official text (excerpt) · last checked 2026-09-16 · Read the full text in our law library · Verify at uscode.house.gov
Cited in 19,606 court opinions in our collectionLatest citing opinion in our collection: 2026
In the courts (editorial summary, independently checked):United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd. (1988) held that an undersecured creditor gets no interest as adequate protection under 362(d)(1) for delay caused by the stay. NLRB v. Bildisco & Bildisco (1984) applied 362(a) in requiring claims be pursued through bankruptcy administration, not suit.
Opinions citing this section in our collection:
- Clinton v. Jones (Supreme Court of the United States 1997, 520 U.S. 681)“…ublic interests. Brief for Petitioner 34-36. See, e. g., 11 U. S. C. § 362 (litigation against debtor stayed upon…”
- United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd. (Supreme Court of the United States 1988, 484 U.S. 365)✓An undersecured lender on a Houston apartment project sought monthly payments as the price of continuing the § 362(a) automatic stay; the Court held that 'adequate protection' under § 362(d)(1) does not entitle it to interest for the delay in foreclosing on its collateral.
- Pennzoil Co. v. Texaco Inc. (Supreme Court of the United States 1987, 481 U.S. 1)“…if it were forced to file for bankruptcy under Chapter 11. 11 U. S. C. §362 . Texaco, or its successor in interest,…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Bankruptcy in Arizona (2026): Exemptions & Means Test, Bankruptcy in Arkansas (2026): Exemptions & Means Test, Bankruptcy in California (2026): Exemptions & Means Test
Sources and References
- W. Va. Code 38-10-4, West Virginia bankruptcy exemptions including the $35,000 homestead (a), $7,500 vehicle (b), wildcard (e), and subsection (k) authorizing the federal 522(d) exemptions(code.wvlegislature.gov).gov
- U.S. Trustee Program, Census Bureau Median Family Income by family size, cases filed on or after April 1, 2026(justice.gov).gov
- 11 U.S.C. 522, the federal bankruptcy exemptions in 522(d) available to West Virginia filers and the 522(b)(2) opt-out authority West Virginia did not exercise(law.cornell.edu)
- U.S. Bankruptcy Court for the Northern District of West Virginia (Wheeling, Clarksburg, Elkins, Martinsburg)(wvnb.uscourts.gov).gov
- U.S. Bankruptcy Court for the Southern District of West Virginia (Charleston, Beckley, Huntington, Bluefield)(wvsb.uscourts.gov).gov
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