Subchapter I. Subjects of Execution; Exemptions
TITLE 10
Courts and Judicial Procedure
Procedure
CHAPTER 49. EXECUTIONS
Subchapter I. Subjects of Execution; Exemptions
§ 4901. Real estate.
Lands, tenements and hereditaments and all right of dower and curtesy therein when no sufficient personal estate can be found may be seized and sold upon judgment and execution obtained.
Code 1852, § 2421; Code 1915, § 4320; 36 Del. Laws, c. 269, § 1; Code 1935, § 4792; 10 Del. C. 1953, § 4901.;
§ 4902. Exempt property.
(a) Every person residing within this State shall have exempt from execution or attachment process, or distress for rent, the following articles of personal property: The family Bible, school books and family library, family pictures, a seat or pew in any church or place of public worship, a lot in any burial ground, all the wearing apparel of the debtor and the debtor's family.
(b) In addition to the articles specifically named in subsection (a) of this section, each person residing in this State shall have exempt the tools, implements and fixtures necessary for carrying on his or her trade or business, not exceeding in value $75 in New Castle and Sussex Counties, and $50 in Kent County.
(c) All sewing machines owned and used by seamstresses or private families, shall be exempt from levy and sale on execution or attachment process and also from distress and sale for rent. This provision shall not apply to persons who keep sewing machines for sale or hire.
(d) All pianos, piano playing attachments and organs leased or hired by any person residing in this State, shall be exempt from levy and sale on execution or from distress for rent due by such person so leasing or hiring any such piano, piano playing attachment, or organ in addition to other goods and chattels exempt by law. The owner of any such piano, piano playing attachment or organ or such owner's agent, or the person so leasing or hiring the same shall give notice to the landlord or the landlord's agent that the instrument is hired or leased.
14 Del. Laws, c. 562, § 1; 16 Del. Laws, c. 146; 16 Del. Laws, c. 538; 22 Del. Laws, c. 459; 23 Del. Laws, c. 201; Code 1915, § 4321; Code 1935, § 4793; 10 Del. C. 1953, § 4902; 70 Del. Laws, c. 186, § 1.;
§ 4903. Head of family exemption.
Every person residing in this State, and being the head of a family, shall have exempt from execution or attachment process, in addition to the exemptions in § 4902 of this title, other personal property not exceeding $500, the articles to be selected by the debtor. The exemptions in this section shall not apply to goods or chattels of a merchantable character bought to be sold and trafficked in by the person in the prosecution of the person's regular business or occupation. No person shall have exempt from execution or attachment process any personal property, excepting that which is expressly exempted by § 4902 of this title when such exemption would prevent the collection according to law of any debt or claim that may be due or growing due for labor or services (other than professional services) rendered by any clerk, mechanic, laborer, or other employee of any person or persons against whom such execution or attachment process may be issued.
14 Del. Laws, c. 562, § 2; 16 Del. Laws, c. 146, §§ 2, 3; 19 Del. Laws, c. 779; Code 1915, § 4322; Code 1935, § 4794; 10 Del. C. 1953, § 4903; 65 Del. Laws, c. 35, §§ 1, 2; 70 Del. Laws, c. 186, § 1.;
§ 4904. Claim of exemption by spouses.
All exemptions of property from judgment lien, execution or forced sale allowed by law to the head of the family may be claimed by both spouses jointly, or by either with the written consent of the other, or half of the exemptions may be claimed by each spouse; but in no case shall both spouses be entitled each to all exemptions allowed by law to the head of a family.
33 Del. Laws, c. 238, § 1; Code 1935, § 4795; 10 Del. C. 1953, § 4904; 70 Del. Laws, c. 186, § 1.;
§ 4905. Evaluation of exempt property; selection of freeholders.
(a) The property exempt and required to be valued by the provisions of §§ 4902 and 4903 of this title shall be valued by 3 judicious and impartial freeholders. One of the freeholders shall be chosen by the creditor having the oldest execution in the hands of the officer holding the writ, one other of the freeholders shall be chosen by the debtor, and the other of the freeholders shall be chosen by the officer.
(b) In case the creditor and debtor, or either of them, neglects or refuses to name a freeholder, the officer shall choose for the person neglecting or refusing, and shall give notice to the freeholders thus chosen, in writing, under his or her hand, fixing the time and place in the notice they will be required to meet.
14 Del. Laws, c. 562, § 3; Code 1915, § 4323; Code 1935, § 4796; 10 Del. C. 1953, § 4905; 70 Del. Laws, c. 186, § 1.;
§ 4906. Procedure of freeholders.
The freeholders shall, upon the receipt of the notice and the tender of the fee named in this subchapter for services in making the valuation, to meet at the time and place mentioned in the notice, and before proceeding to make the valuation of property exempt under §§ 4902 and 4903 of this title and requiring a valuation thereof, shall take the following oath or affirmation, to wit: "I do solemnly swear, or affirm, as the case may be, that I will appraise the property of A. B., exempt from execution or attachment process under and by virtue of the laws of this State, at its true value in money, and that I will true schedule make to the best of my knowledge and understanding." They shall then proceed to value the property designated and set apart by the debtor, and to make 2 schedules, distinctly stating the respective articles and their value thereof, with a certificate certifying that the articles mentioned in the schedule have been appraised at their true value in money, and were designated and set apart by the debtor and claimed by the debtor as exempt from execution or attachment process. Such certificate shall be signed by the freeholders or a majority of them. The articles mentioned by name in § 4902 of this title shall not be valued or included in the schedule.
14 Del. Laws, c. 562, § 4; Code 1915, § 4324; Code 1935, § 4797; 10 Del. C. 1953, § 4906; 70 Del. Laws, c. 186, § 1.;
§ 4907. Fees.
The fees for the service of the freeholders, in making the valuation required by this chapter, shall be the same as are allowed by law to referees before justices of the peace, and the fees to the officer serving the notices shall be the same as are allowed by law for summoning referees before justices of the peace, and shall form a part of the costs of the case upon which the officer is proceeding to make the sale.
14 Del. Laws, c. 562, § 6; Code 1915, § 4326; Code 1935, § 4799; 10 Del. C. 1953, § 4907.;
§ 4908. Authority to administer oaths.
The officer making the sale, and serving the notices required, shall administer the oath required by this subchapter.
14 Del. Laws, c. 562, § 7; Code 1915, § 4327; Code 1935, § 4800; 10 Del. C. 1953, § 4908.;
§ 4909. Neglect of duty by freeholders; penalty.
Whoever, being a freeholder, neglects or refuses to perform the duties required by this subchapter, shall be fined not more than $5.
14 Del. Laws, c. 562, § 5; Code 1915, § 4325; Code 1935, § 4798; 10 Del. C. 1953, § 4909.;
§ 4910. Taxation or sale for taxes.
Nothing contained in this subchapter shall be construed as exempting any personal property from taxation, or sale for taxes, under the laws of this State.
14 Del. Laws, c. 562, § 8; Code 1915, § 4328; Code 1935, § 4801; 10 Del. C. 1953, § 4910.;
§ 4911. Prohibition against levying upon goods in storage warehouse; violation and penalty.
(a) No constable in the State shall levy upon or sell or offer to sell or to remove, by virtue of any writ or upon any claim or demand whatsoever, any goods and chattels when such goods and chattels have been placed in, and continue to be in, any storage warehouse. No such goods and chattels, so placed, shall hereafter be seized upon or sold, except by the sheriff of the county in which such goods and chattels are located, after such appraisement and advertisement and under like conditions as are required by law in the case of goods and chattels seized and sold by the sheriff under execution process.
(b) Whoever, being a constable, violates this section, shall be fined not more than $100 or imprisoned not more than 3 months, or both.
38 Del. Laws, c. 79, §§ 1, 2; Code 1935, § 4802; 10 Del. C. 1953, § 4911.;
§ 4912. Waiver of exemptions.
Any husband and wife jointly may make any waiver of any of the provisions of §§ 4902-4911 of this title.
14 Del. Laws, c. 562, § 9; Code 1915, § 4330; Code 1935, § 4803; 10 Del. C. 1953, § 4912; 70 Del. Laws, c. 186, § 1.;
§ 4913. Exemption and attachment of wages.
(a) Eighty-five percent of the amount of the wages for labor or service of any person residing within the State shall be exempt from mesne attachment process and execution attachment process under the laws of this State; but such limitation shall be inapplicable to process issued for the collection of a fine or costs or taxes due and owing the State.
(b) On any amount of wages due, only 1 attachment may be made. Any creditor causing such attachment to be made shall have the benefit of priority until the judgment with costs for which the attachment was made has been paid in full.
(c) Wages shall include salaries, commissions and every other form of remuneration paid to an employee by an employer for labor or services, but shall not include payment made for services rendered by a person who is self-employed.
Code 1915, § 4331A; 40 Del. Laws, c. 244; Code 1935, § 4804; 41 Del. Laws, c. 211; 48 Del. Laws, c. 263, § 1; 10 Del. C. 1953, § 4913; 49 Del. Laws, c. 237; 54 Del. Laws, c. 226; 57 Del. Laws, c. 508, § 3; 59 Del. Laws, c. 352, § 1; 60 Del. Laws, c. 618, § 1; 70 Del. Laws, c. 186, § 1.;
§ 4914. Exemptions in bankruptcy and insolvency.
(a) In accordance with § 522(b) of the Bankruptcy Reform Act of 1978 (11 U.S.C. § 522(b)), in any bankruptcy proceeding, an individual debtor domiciled in Delaware is not authorized or entitled to elect the federal exemptions as set forth in § 522(d) of the Bankruptcy Reform Act of 1978 (11 U.S.C. § 522(d)) and may exempt only that property from the estate as set forth in subsection (b) of this section.
(b) In any federal bankruptcy or state insolvency proceeding, an individual debtor domiciled in Delaware shall be authorized to exempt from the bankruptcy or insolvency estate, in addition to the exemptions made in this subsection and in § 4915 of this title, personal property and/or equity in real property, other than the debtor's principal residence having an aggregate fair market value of not more than $25,000.
(c) In any federal bankruptcy or state insolvency proceeding, an individual debtor and/or such individual's spouse domiciled in Delaware shall be authorized to exempt from the bankruptcy or insolvency estate, in addition to the exemptions made in subsection (b) hereof and in § 4915 of this title, the following:
(1) Equity in real property or equity in a manufactured home (as defined in Chapter 70 of Title 25) which constitutes a debtors principal residence in an aggregate amount not to exceed $75,000 in 2010, $100,000 in 2011, and $125,000 in 2012, except that the exemption for persons totally disabled from working or married persons where at least one of the spouses is 65 years old or older shall be $125,000 effective immediately, and
(2) A vehicle and/or tools of the trade necessary for purposes of employment in an amount not to exceed $15,000 each.
(d) This section shall apply separately with respect to each debtor in a joint case but not to exceed $25,000 each in value in personal property and/or equity in real property, other than the debtor's principal residence, a total not to exceed $125,000 in value in a principal residence in an individual or a joint case, and $15,000 each in subsection (c) of this section vehicle and $15,000 each in subsection (c) of this section tools of the trade.
(e) A debtor may not exempt any amount of an interest in property described in paragraph (c)(1) of this section, if the Bankruptcy Court determines, after notice and hearing, that the debtor owes a debt arising from:
(1) Any violation of the federal securities laws (as defined in § 3(a)(47) of the Securities and Exchange Act of 1934 [15 U.S.C. § 78c(a)(47)]), any state securities law, or any regulation or order issued under federal or state securities laws,
(2) Fraud, deceit, or manipulation in a fiduciary capacity or in connection with the purchase or sale of any security registered under § 12 or § 15(d) of the Securities Exchange Act of 1934 [15 U.S.C. § 78l or § 78o(d)] or under § 6 of the Securities Act of 1933 [15 U.S.C. § 77f], or
(3) Any criminal act, intentional tort, or wilful or reckless misconduct that caused serious physical injury or death to another individual in the preceding 5 years.
63 Del. Laws, c. 81, § 1; 71 Del. Laws, c. 37, § 1; 75 Del. Laws, c. 131, §§ 1, 2; 76 Del. Laws, c. 342, §§ 1, 2; 77 Del. Laws, c. 262, §§ 1-3.;
§ 4915. Exemption of retirement plans.
(a) In addition to the exemptions provided in §§ 4902 and 4903 of this title, there shall be exempt from execution or attachment process assets held or amounts payable under any retirement plan.
(b) Any amount qualifying as an "eligible rollover distribution" under § 402 of the Internal Revenue Code of 1986 [26 U.S.C. § 402], as amended, or as a "rollover contribution" under § 408 of the Internal Revenue Code of 1986 [26 U.S.C. § 408], as amended, is treated as an exempt amount under subsection (a) of this section for 60 days after the distribution of such amount. Such amount remains exempt from execution or attachment process if contributed to a retirement plan within 60 days of being distributed from a retirement plan.
(c) Any retirement plan described in subsection (a) of this section shall not be exempt from any claims for relief granted pursuant to Chapter 5 and/or Chapter 15 of Title 13.
(d) Any retirement plan described in subsection (a) of this section shall not be exempt from the claims of an alternate payee under a qualified domestic relations order. However, the interest of any and all alternate payees under a qualified domestic relations order shall be exempt from any and all claims of any creditor of the alternate payee. As used in this subsection, the terms "alternate payee" and "qualified domestic relations order" have the meaning ascribed to them in § 414(p) of the Internal Revenue Code of 1986 [26 U.S.C. § 414(p)], as amended.
(e) A participant or beneficiary of a retirement plan is not prohibited from granting a valid and enforceable security interest in the participant's or beneficiary's interest under the retirement plan to secure a loan to the participant or beneficiary from the plan, and the right to assets held in or to receive payments from the plan is subject to execution and attachment for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.
(f) "Retirement plan" means any retirement or profit sharing plan that is qualified under § 401, § 403, § 408, § 408A, § 409, § 414 or § 457 of the Internal Revenue Code of 1986 [26 U.S.C. § 401, § 403, § 408, § 408A, § 409, § 414 or § 457], as amended.
(g) This section shall not exempt from execution or attachment any judgment obtained under § 554 of Title 30.
(h) If this section is held invalid or preempted by federal law, in whole or in part, it shall remain in effect to the maximum extent permitted by law.
71 Del. Laws, c. 37, § 2; 71 Del. Laws, c. 276, § 1.;
§ 4916. Exemption of Delaware College Investment Plan Accounts.
(a) In addition to the exemptions provided in §§ 4902 and 4903 of this title, there shall be exempt from execution or attachment process assets held in and proceeds payable under Chapter 5 of Title 13 or from any account established under the Delaware College Investment Plan pursuant to subchapter XII of Chapter 34 of Title 14 (a "Plan Account"). This exemption shall only apply to such amount as does not exceed the total contributions permitted under § 529(b)(7) of the Internal Revenue Code with respect to any Plan Account.
(b) This section shall not exempt from execution or attachment assets contributed by a debtor to any Plan Account within 365 days to the extent that such assets contributed within said 365 days exceed the greater of (i) $5,000 or (ii) the average annual contribution made by such debtor to such Plan Account for the 2 calendar years preceding the date of the filing of such execution or attachment or the filing of such petition.
(c) This section shall not exempt from execution or attachment any judgment obtained under § 554 of Title 30. If any portion of this section is held invalid or is preempted by federal law, in whole or in part, the remaining portions shall remain in effect to the maximum extent permitted by law.
(d) In the case of a Plan Account owned by a trust, nothing in this section may be construed to limit the protections afforded to trusts by § 3536 of Title 12.
73 Del. Laws, c. 169, § 1; 76 Del. Laws, c. 149, § 8.;