The Brunner Test, Explained

When a borrower asks a bankruptcy court to discharge student loans, the central legal question is whether repaying them would impose an "undue hardship" under 11 U.S.C. §523(a)(8). Congress never defined the phrase, so courts built tests around it. The most widely used is the three-prong Brunner test, from the 1987 decision Brunner v. New York State Higher Education Services Corp. Understanding its three prongs is the key to understanding these cases.

Prong One: Present Inability to Maintain a Minimal Standard of Living

The first prong asks whether, based on your current income and expenses, you can maintain a minimal standard of living for yourself and your dependents if you are forced to repay the loans. "Minimal" does not mean poverty, but courts scrutinize discretionary spending. The borrower must show that paying the loans would push the household below a basic standard of living. This is a snapshot of the present moment — what your finances look like today.

Prong Two: Persistence of the Hardship

The second prong asks whether your difficult financial circumstances are likely to persist for a significant portion of the loan repayment period. A temporary setback — a few months of unemployment with good prospects of recovery — generally will not satisfy this prong. Courts look for "additional circumstances" suggesting the hardship is durable: a permanent disability, a chronic medical condition, advancing age, caregiving obligations, or a long history of low income despite effort. This is the prong that historically tripped up the most borrowers under strict applications of Brunner.

Prong Three: Good-Faith Effort to Repay

The third prong asks whether you have made good-faith efforts to repay the loans. Courts consider whether you made payments when you were able, whether you attempted to enroll in income-driven repayment plans, whether you sought deferment or forbearance appropriately, and whether you generally tried to manage the debt rather than ignore it. A borrower who never made any payment and never explored repayment options may struggle on this prong, while one who genuinely tried and still cannot keep up presents a stronger case.

All Three Prongs — and the Totality Alternative

Under Brunner, a borrower generally must satisfy all three prongs to win discharge; failing any one can defeat the claim. Not every court uses Brunner, however. Several circuits — some openly critical of Brunner as unduly rigid — apply a "totality of the circumstances" standard instead, weighing the borrower's past, present, and reasonably reliable future finances together rather than treating the prongs as separate hurdles. Which test applies depends on the circuit where your bankruptcy is filed, which is one reason these cases benefit from counsel familiar with your jurisdiction.

How the 2022 Attestation Process Maps onto Brunner

The November 17, 2022 DOJ and Department of Education attestation process (justice.gov) is structured to gather exactly the information these tests require: present income and expenses (prong one), circumstances bearing on whether the hardship will persist (prong two), and a record of repayment efforts (prong three). By standardizing how that information is collected and assessed, the process makes it easier for the government to recognize when a borrower's facts meet the standard. Reflecting cases brought under this process, studentaid.gov reports that courts granted full or partial discharge in approximately 98% of cases decided November 2022 through March 2024. That figure is windowed and attributed; it is not a promise. No outcome is guaranteed; whether you satisfy the test depends on your facts and a court's decision. People's Justice is not a law firm and does not provide legal advice; we connect you with licensed attorneys, and we are not a government agency.