Short answer: it depends on why you’re claiming the exemption. If you’re filing for bankruptcy, Virginia law now lets you claim your homestead exemption directly on your bankruptcy paperwork — you generally don’t have to record a separate homestead deed first. If you’re not in bankruptcy — for example, you’re trying to protect wages or a bank account from an ordinary court judgment or garnishment — recording a homestead deed is still required.
For a broader comparison of your options, see Homestead Deed vs. Bankruptcy: Which One Actually Fits Your Situation?
What Changed in 2020 (Va. Code § 34-6)
Before 2020, Virginia law required anyone claiming the homestead exemption — whether in bankruptcy or not — to record a written homestead deed with the local circuit court before the exemption applied. A 2020 amendment to Va. Code § 34-6 added a specific carve-out for bankruptcy cases: if the real estate (or other exempt property) is claimed exempt in a case filed under Title 11 of the U.S. Code, the official Schedule of Property Claimed as Exempt filed with the bankruptcy court is enough to set the property apart as exempt. A separately recorded homestead deed is no longer required in that situation.
That change only touches the filing mechanism. It doesn’t change what can be exempted or how much — the underlying exemption amounts and eligibility rules are set out separately in Va. Code § 34-4 and were not altered by this amendment. As of a later, separate 2024 amendment to § 34-4, the homestead exemption is $5,000 in money and personal property generally ($10,000 if the householder is 65 or older), plus up to $50,000 in real or personal property used as the householder’s or a dependent’s principal residence, plus $500 per dependent. These figures are scheduled to adjust for inflation every three years starting April 1, 2027.
If You’re Filing Bankruptcy: You Generally Don’t Need to Record a Homestead Deed First
If you’re filing Chapter 7 or Chapter 13 bankruptcy, you claim your homestead exemption on your bankruptcy Schedule of Exempt Property, filed with the bankruptcy court as part of your case. Under the 2020 change, that filing itself is legally sufficient — you don’t need to separately record a homestead deed with your local circuit court beforehand for that exemption to count in the bankruptcy case.
This is a meaningful simplification for people who are already filing bankruptcy: one fewer document, one fewer filing fee, one fewer trip to the clerk’s office, at least for the purpose of the bankruptcy exemption itself.
If You’re Not in Bankruptcy: You Still Need to Record a Homestead Deed
Outside of a bankruptcy filing, nothing has changed. If a creditor has a judgment against you and is garnishing your wages or has frozen a bank account, Virginia law still requires you to record a homestead deed — the same written declaration described in Va. Code § 34-6 — before you can claim the homestead exemption against that judgment.
This is the scenario most visitors to this site are dealing with: a garnishment or bank levy, with no bankruptcy filed. If that’s your situation, the 2020 change doesn’t apply to you, and you still need to prepare and record a homestead deed to protect the exempt portion of your wages or funds.
Why the Distinction Trips People Up
Both paths use the same words — “homestead exemption” — and the same underlying dollar amounts from Va. Code § 34-4. The difference is entirely about how you claim it: through a bankruptcy schedule, or through a recorded deed. It’s easy to read about the 2020 change, assume it means homestead deeds are no longer needed at all, and skip a filing step that’s still required for garnishment protection. That assumption is the single most common — and costly — misunderstanding we see about this change.
How Merna Law Can Help
Whether you’re weighing bankruptcy against a homestead deed, or you already know a homestead deed is the right tool for your situation, we can help you get it done correctly and on the right timeline. If bankruptcy may be a better fit for your overall financial picture, our attorneys at Merna Law can walk you through that option directly.
Frequently Asked Questions
Does filing bankruptcy in Virginia automatically protect my homestead exemption?
Filing bankruptcy doesn’t automatically apply the exemption — you still have to claim it on your Schedule of Property Claimed as Exempt. But under the 2020 change to Va. Code § 34-6, that bankruptcy filing is sufficient on its own; you don’t need a separately recorded homestead deed as well.
I’m being garnished but haven’t filed bankruptcy. Do I need a homestead deed?
Yes. The 2020 change applies specifically to property claimed exempt in a bankruptcy case. If you’re dealing with a garnishment or bank levy outside of bankruptcy, you still need to record a homestead deed to claim the exemption.
Does this change how much of my wages or property is exempt?
No. The 2020 amendment changed only how the bankruptcy exemption is claimed, not the exemption amounts themselves. Those amounts come from Va. Code § 34-4 — currently up to $50,000 for a principal residence, plus a general exemption and per-dependent amounts, most recently updated in 2024 — and apply the same way whether you get there through a bankruptcy schedule or a recorded homestead deed.