Declaration of Homestead — Georgia

DECLARATION OF HOMESTEAD — GEORGIA

Table of Contents

1. Declarant Information
2. Property Description
3. Residency Declaration
4. Title & Ownership
5. Spousal / Joint Claim
6. Statutory Exemption Election
7. Equity Calculation
8. BAPCPA / 1,215-Day Disclosures
9. Affirmation & Acknowledgment
10. Notary
11. Sources & References

PART 1: DECLARANT INFORMATION

PART 2: PROPERTY DESCRIPTION

Section 2.1 — Legal Description

Attach as Exhibit A the legal description from the warranty deed or limited warranty deed for the property. If the property is a condominium, attach the declaration of condominium reference. If a manufactured home, attach the title and any T-234 detitling certificate evidencing real property classification.

Legal Description (attached as Exhibit A):

[____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________]

PART 3: RESIDENCY DECLARATION

Section 3.1 — Use as Residence

I/We hereby declare under penalty of perjury that:

☐ The property described in Part 2 is currently used by the Declarant (and/or a dependent of the Declarant) as a primary residence within the meaning of O.C.G.A. § 44-13-100(a)(1).

☐ Date residency commenced at the property: [__/__/____]

☐ The property is occupied as my/our primary place of habitation; I/we sleep, receive mail, and maintain personal effects at the property.

☐ I/We have no other property simultaneously claimed as a homestead in Georgia or in any other state.

☐ My/Our Georgia driver's license, voter registration, and tax filings reflect the property address.

Section 3.2 — Domicile / BAPCPA Period

PART 4: TITLE & OWNERSHIP

Section 4.1 — Title Vesting

Section 4.2 — Encumbrances of Record

PART 5: SPOUSAL / JOINT CLAIM

Section 5.1 — Section 44-13-100(a)(1) Doubling

Where two debtors who are married (or where title is in one spouse but the other resides at the property as a debtor with an exemptible interest), the homestead exemption is $43,000.00 under O.C.G.A. § 44-13-100(a)(1).

Section 5.2 — Common-Law / Putative Marriage

Georgia abolished prospective common-law marriage on January 1, 1997. Common-law marriages established BEFORE that date remain valid.

☐ Common-law marriage established before January 1, 1997 (provide date and proof: [____________________])
☐ Not applicable.

PART 6: STATUTORY EXEMPTION ELECTION

Section 6.1 — Election

Georgia provides two distinct homestead frameworks. The bankruptcy schedule under O.C.G.A. § 44-13-100(a)(1) is virtually always more favorable than the constitutional / statutory schedule under O.C.G.A. § 44-13-40 et seq.

I/We elect:

☐ Bankruptcy Homestead — O.C.G.A. § 44-13-100(a)(1) — $21,500 single / $43,000 joint (RECOMMENDED for bankruptcy)

☐ Constitutional / Statutory Homestead — O.C.G.A. § 44-13-40 — $5,000 plus $300 per dependent (rarely beneficial; available against most non-bankruptcy creditors but does NOT supplant § 44-13-100 in bankruptcy)

☐ Both are noted, but the § 44-13-100(a)(1) election controls for any bankruptcy filing under O.C.G.A. § 44-13-100(b).

Section 6.2 — Confirmation of Opt-Out

Pursuant to O.C.G.A. § 44-13-100(b), an individual debtor whose domicile is in Georgia is NOT authorized to use the federal exemptions under 11 U.S.C. § 522(d). I/We confirm that any bankruptcy claim under this Declaration relies on the Georgia state homestead and not federal § 522(d).

☐ Confirmed.

PART 7: EQUITY CALCULATION

Section 7.1 — Current Equity Snapshot

Section 7.2 — Unused Homestead Available for Wildcard

Under O.C.G.A. § 44-13-100(a)(6), any unused homestead amount up to $10,000 may be applied as a "wildcard" against any property.

PART 8: BAPCPA / 1,215-DAY DISCLOSURES

Section 8.1 — § 522(p) 1,215-Day Federal Cap

Under 11 U.S.C. § 522(p), state homestead equity exceeding $214,000 (current 2025 cycle adjustment, effective 4/1/2025; subject to triennial adjustment) acquired during the 1,215 days before petition is capped at that federal figure regardless of state law. Georgia's $21,500 cap is well below the federal § 522(p) cap, so § 522(p) rarely binds Georgia debtors — but the rollover and acquisition-date analysis still must be documented.

Section 8.2 — § 522(o) 10-Year Look-Back (Fraudulent Conversion)

Under 11 U.S.C. § 522(o), homestead equity attributable to nonexempt property converted within 10 years of petition with intent to hinder, delay, or defraud creditors is reduced.

Section 8.3 — § 522(q) Felony / Securities-Violation Cap

Under 11 U.S.C. § 522(q), homestead is capped at $214,000 if the debtor (within the relevant period) is convicted of a felony demonstrating bankruptcy abuse or owes a debt arising from securities-law violations or specified torts.

PART 9: AFFIRMATION & ACKNOWLEDGMENT

Section 9.1 — Declarant's Sworn Statements

I/We, the Declarant(s), hereby DECLARE, AFFIRM, and CERTIFY under penalty of perjury under the laws of the State of Georgia and the United States that:

☐ I/We are the lawful owner(s) (or co-owner(s) with claimed exemptible interest) of the property described in Part 2;

☐ The property is currently used as my/our primary residence within the meaning of O.C.G.A. § 44-13-100(a)(1);

☐ All financial information disclosed herein is true, complete, and accurate to the best of my/our knowledge;

☐ I/We claim the homestead exemption under O.C.G.A. § 44-13-100(a)(1) and acknowledge Georgia's opt-out from federal exemptions under O.C.G.A. § 44-13-100(b) and 11 U.S.C. § 522(b)(2);

☐ I/We acknowledge that Georgia's bankruptcy homestead is automatic and self-executing — this Declaration is filed for evidentiary memorialization and not as a recording-based perfection requirement;

☐ I/We have made NO transfer of property to defeat creditors that would invoke 11 U.S.C. § 522(o) or O.C.G.A. § 18-2-74 (Uniform Voidable Transactions Act);

☐ I/We have not previously claimed a homestead in any other state or jurisdiction that would conflict with this Declaration;

☐ I/We understand this Declaration does NOT defeat properly perfected purchase-money mortgages, refinance mortgages, materialmen's liens, federal tax liens, state tax liens, or domestic support obligations.

Section 9.2 — Signatures

NOTARY ACKNOWLEDGMENT

STATE OF GEORGIA
COUNTY OF [____________________]

Before me, the undersigned notary public, on this [____] day of [____________], 20[____], personally appeared [DECLARANT NAME] [and [SPOUSE NAME]], who is/are personally known to me or who has/have produced [____________________] as identification, and who, being first duly sworn, executed the foregoing Declaration of Homestead and acknowledged the same to be his/her/their voluntary act for the purposes therein expressed.

Witness my hand and official seal.

OPTIONAL: RECORDING INSTRUCTIONS

Recording is NOT required to perfect the Georgia bankruptcy homestead. This section is provided only if the Declarant elects to record this Declaration for evidentiary, title-search, or pre-bankruptcy planning purposes.

If recorded:

• Record in: Office of the Clerk of Superior Court, [____________________] County, Georgia
• Recording fee: per O.C.G.A. § 15-6-77
• Cross-reference in deed records to the deed identified in Part 2
• Recorded at Book [______], Page [______], Date [__/__/____]

RETURN RECORDED DOCUMENT TO:

[____________________]
[____________________]
[____________________]

SOURCES & REFERENCES

Primary Authority — Georgia

• O.C.G.A. § 44-13-100 (Bankruptcy Exemptions, including (a)(1) homestead and (b) opt-out), https://law.justia.com/codes/georgia/title-44/chapter-13/article-2/section-44-13-100/
• O.C.G.A. § 44-13-1 (Persons entitled to exemption)
• O.C.G.A. § 44-13-40 (Constitutional Exemption alternative — $5,000 + $300/dependent)
• O.C.G.A. § 44-13-41 (Application; schedule)
• O.C.G.A. § 18-2-74 (Uniform Voidable Transactions Act)
• O.C.G.A. § 15-6-77 (Recording fees)
• Ga. Const. Art. IX, § II, ¶ VI (Constitutional Homestead)

Primary Authority — Federal

• 11 U.S.C. § 522(b)(2) (State opt-out authorization)
• 11 U.S.C. § 522(b)(3)(A) (BAPCPA 730-day domicile rule)
• 11 U.S.C. § 522(o) (10-year fraudulent conversion look-back)
• 11 U.S.C. § 522(p) (1,215-day cap on recently acquired homestead equity)
• 11 U.S.C. § 522(q) (Felony / securities-violation cap)

Case Law

• Schwab v. Reilly, 560 U.S. 770 (2010) — exemption claim format
• Patterson v. Shumate, 504 U.S. 753 (1992) — ERISA exclusion (cross-reference)
• Law v. Siegel, 571 U.S. 415 (2014) — limits on equitable surcharge
• In re McFarland, 790 F.3d 1182 (11th Cir. 2015) — Georgia exemption interpretation

Court Resources

• U.S. Bankruptcy Court for the Northern District of Georgia, https://www.ganb.uscourts.gov
• U.S. Bankruptcy Court for the Middle District of Georgia, https://www.gamb.uscourts.gov
• U.S. Bankruptcy Court for the Southern District of Georgia, https://www.gasb.uscourts.gov
• Georgia General Assembly (Statute Verification), https://www.legis.ga.gov

DISCLAIMER: This Declaration is provided as a memorialization tool for the Georgia bankruptcy homestead exemption under O.C.G.A. § 44-13-100(a)(1). Georgia's bankruptcy homestead is AUTOMATIC and does not require recording or filing for perfection. Statutory amounts and federal triennial caps may be amended; verify against the official Georgia Code at https://www.legis.ga.gov and federal § 522 adjustments before any bankruptcy filing. Use of this Declaration does not, by itself, defeat properly perfected liens, including purchase-money mortgages, materialmen's liens, tax liens, or domestic support obligations. This is not legal advice and does not create an attorney-client relationship. Consult a Georgia bankruptcy attorney admitted in the relevant district before relying on this Declaration in any contested matter.