MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A

By: Representative Davis (By Request)

AN ACT TO AMEND SECTIONS 85-3-21, 85-3-23, 85-3-27 AND 85-3-31, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE AMOUNT OF A HOMESTEAD EXEMPTION THAT A PERSON WHO IS A HOUSEHOLDER IS ENTITLED TO HOLD EXEMPT FROM SEIZURE OR SALE UNDER EXECUTION OR ATTACHMENT WILL BE THE FULL VALUE OF THE HOMESTEAD BASED ON ITS VALUE ONE YEAR BEFORE THE SEIZURE, IN THE CASE OF OBLIGATIONS ARISING DIRECTLY AS A RESULT OF A CATASTROPHIC OR TERMINAL ILLNESS OR INJURY; TO AMEND SECTIONS 85-3-35 AND 85-3-37, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 85-3-21, Mississippi Code of 1972, is amended as follows:

85-3-21. (1) Every citizen of this state, male or female, being a householder shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him, or her, but the quantity of land shall not exceed one hundred sixty (160) acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of Seventy-five Thousand Dollars ($75,000.00) or such higher amount as specified in subsection (2) of this section; * * * however, * * * in determining this value, existing encumbrances on such land and buildings, including taxes and all other liens, shall first be deducted from the actual value of such land and buildings. But husband or wife, widower or widow, over sixty (60) years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not residing therein.

(2) In the case of obligations arising directly as a result of a catastrophic or terminal illness or injury, the amount of the exemption will be the full value of the homestead based upon its value one (1) year before the seizure. For the purposes of this subsection, "catastrophic or terminal illness or injury" means an illness or injury that creates uninsured obligations to health care providers that are more than Ten Thousand Dollars ($10,000.00) and are greater than fifty percent (50%) of the annual adjusted gross income of the debtor, as established by an average of federal income tax returns for the three (3) preceding years.

SECTION 2. Section 85-3-23, Mississippi Code of 1972, is amended as follows:

85-3-23. Every citizen of this state, male or female, being a householder shall be entitled to hold exempt from seizure or sale under execution or attachment the land and buildings owned and occupied as a residence by such person, also the proceeds of any insurance, fire or otherwise, on any such buildings destroyed or damaged by fire, tornado or otherwise, not to exceed in value, save as hereinafter provided, Seventy-five Thousand Dollars ($75,000.00) or such higher amount as specified in Section 85-3-21(2), and personal property to be selected by him or her not to exceed in value Two Hundred Fifty Dollars ($250.00) or the articles specified as exempt to the head of a family; * * * however, * * * no sum or amount due, or to become due such person, nor any part thereof, for or on account of wages, salaries or commissions, shall in any proceedings be selected or claimed as exempt under this section. But husband or wife, widower or widow, over sixty (60) years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not residing therein.

SECTION 3. Section 85-3-27, Mississippi Code of 1972, is amended as follows:

85-3-27. The declaration, for not more than one hundred sixty (160) acres, and not exceeding in value Seventy-five Thousand Dollars ($75,000.00) or such higher amount as specified in Section 85-3-21(2); or, if the homestead be in a city, town or village, not exceeding in value Seventy-five Thousand Dollars ($75,000.00) or such higher amount as specified in Section 85-3-21(2) after being filed for record, shall be notice to all persons to be affected thereby; and shall bind the exemptionist, the spouse of the exemptionist if the exemptionist be married, and the creditors of the exemptionist until the exemptionist shall execute and file a new declaration which shall nullify the preceding one, and otherwise have like effect; and shall moreover entitle the exemptionist thereafter to hold the same as exempt to the extent of such value; but subject to contest and legal designation or allotment, if the exemptionist had declared for too much, or has insufficiently or improperly described the premises; and to contest by creditors on the ground that the exemptionist was not entitled to a homestead, and by the spouse of the exemptionist on the ground that it was intended to defraud or circumvent such spouse.

SECTION 4. Section 85-3-31, Mississippi Code of 1972, is amended as follows:

85-3-31. The homestead of every citizen entitled to such an exemption who shall not select or who has improperly selected his homestead by declaration, shall be, namely: A tract of land in the form of, first, a square, or second, a parallelogram, if practicable, and composed, if practicable, of contiguous parcels, and including the dwelling house, and, if practicable, the other principal buildings, and not to exceed one hundred sixty (160) acres in area, nor Seventy-five Thousand Dollars ($75,000.00) in value or such higher amount as specified in Section 85-3-21(2). And in all cases where the homestead may be composed of detached parcels of land, it shall be made up of those nearest the forty (40) acre or other less tract containing the dwelling house.

SECTION 5. Section 85-3-35, Mississippi Code of 1972, is amended as follows:

85-3-35. If the land on which the person claiming the exemption resides exceeds one hundred sixty (160) acres in quantity or Seventy-five Thousand Dollars ($75,000.00) in value, inclusive of improvements, and a proper selection of a homestead has not been made and filed for record, the officer holding an execution against such persons, and not finding other property to satisfy the same, shall levy the execution on the whole land, and shall notify the defendant, if to be found, and the plaintiff or his attorney, if in his county, each to select one (1) householder or freeholder; and each party may select one, and inform the officer of his selection, and the officer shall select a third; or, if defendant or plaintiff or his attorney be absent from the county, or if he shall not make a selection, or if the person selected will not act, the officer shall select the three (3) householders or freeholders, who, on oath to be administered by him, shall set off to such person a portion of the land, embracing the dwelling house and outhouses and not exceeding one hundred sixty (160) acres in quantity nor Seventy-five Thousand Dollars ($75,000.00) in value, and the allotment, distinctly indicated by metes and bounds or other sufficient description, shall be returned with the execution; and the levy of the execution shall be dismissed as to the part so allotted; and the officer may advertise and sell the remainder of the land. In making such allotment, the homestead shall be laid off as designated by law in case of the debtor's failure to select his homestead and file his declaration thereof for record.

This section may not be used against a person claiming an exemption in the case of obligations arising directly as a result of a catastrophic or terminal illness or injury, as provided in Section 85-3-21(2).

SECTION 6. Section 85-3-37, Mississippi Code of 1972, is amended as follows:

85-3-37. If the premises be not capable of being so divided as to set off the debtor a part, including the dwelling house and not exceeding Seventy-five Thousand Dollars ($75,000.00) in value, inclusive of improvements, or if the debtor has made a valid homestead declaration, and the homestead exceeds Seventy-five Thousand Dollars ($75,000.00) in value, the householders or freeholders shall value the land, inclusive of the dwelling house and buildings; and if the surplus of the valuation, over and above the exempt value, shall, within sixty (60) days, be paid by the execution-debtor, the premises shall not be sold; but if the surplus be not paid within sixty (60) days after the valuation, the officer may advertise and sell the premises, if the same shall bring a greater sum than the exempt value; and out of the proceeds of the sale he shall pay to the execution-debtor the sum of Seventy-five Thousand Dollars ($75,000.00).

This section may not be used against a person claiming an exemption in the case of obligations arising directly as a result of a catastrophic or terminal illness or injury, as provided in Section 85-3-21(2).