Bankruptcy in the Golden Years: The Case for Increasing Exemptions for Elderly Americans

This Comment analyzes 11 U.S.C. § 522(d) and several state exemption statutes for their success at providing elderly debtors sufficient exemptions to maintain their quality of life after filing for bankruptcy. Exemptions are assets that are excluded from an individual debtor’s estate upon filing for bankruptcy and that serve as protection against creditors stripping the debtor of all pre-petition property interests. State and federal exemptions vary dramatically, with some states carving out additional exemptions specifically for elderly debtors. For example, states like Massachusetts and Maine recognize additional exemptions for elderly debtors with regards to their homesteads. Bankruptcy filing rates for elderly Americans have increased while elderly debtors continue to receive inconsistent treatment in bankruptcy across various states. Accordingly, similarly situated debtors can face disparate outcomes based solely on their state of residence. This Comment argues that Congress should follow the lead of states like Massachusetts and Maine by providing additional bankruptcy exemptions for all elderly Americans, because elderly debtors have different fundamental needs and goals from other American debtors. A revised federal exemption statute is the best approach for resolving the unequal state-by-state treatment of elderly debtors, as well as for meeting their unique bankruptcy needs