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State Laws Protecting IRAs

State-By-State Analysis Of Individual Retirement Accounts As Exempt Property

*Kentucky, Michigan, Ohio, and Tennessee: The U.S. Court of Appeals for the Sixth Circuit ruled in Lampkins v. Golden, 2002 U.S. App. LEXIS 900, 2002-1 U.S.T.C. par. 50,216 (6th Cir. 2002), that a Michigan statute exempting SEPs and IRAs from creditor claims was preempted by ERISA. The decision appears, however, to be limited to SEPs and SIMPLE IRAs.

State IRA Roth Special Statutory Provisions Exempt IRA

Alabama - Ala. Code §19-3B-508. Yes No

Alaska – Alaska Stat. §09.38.017. The exemption does not apply to amounts contributed within 120 days before the debtor files for bankruptcy.

Arizona - Ariz. Rev. Stat. Ann. 33-1126(B) claim by an alternate payee under a QDRO. The interest of an alternate payee is exempt from claims by credi­tors of the alternate payee. The ex­emption does not apply to amounts contributed within 120 days before a debtor files for bankruptcy.

Arkansas - Ark. Code Ann. §16-66-220. A bankruptcy court held that the creditor exemption for IRAs violates the Arkansas Constitution - at least with respect to contract claims.

California - Cal. Civ. Proc. Code §704.115. No No IRAs are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely 40 | The Practical Tax Lawyer Winter 2008 to be available for the support of the judgment debtor when the judgment debtor retires.

Colorado - Colo. Rev. Stat. §13-54-102. Any retirement benefit or payment is subject to attachment or levy in satisfaction of a judgment taken for ar­rears in child support; any pension or retirement benefit is also subject to attachment or levy in satisfaction of a judgment awarded for a felonious kill­ing.

Connecticut - Conn. Gen. Stat. §52-321a

Delaware - Del. Code Ann. tit. 10, §4915. An IRA is not exempt from a claim made pursuant to Title 13 of the Delaware Code, which Title pertains to domestic relations order.

Florida - Fla. Stat. Ann. §222.21. IRA is not exempt from claim of an alternate payee under a QDRO or claims of a surviving spouse pursuant to an order determining the amount of elective share and contribution.

Georgia - Ga. Code Ann. §44-13-100. IRAs are exempt only to the extent necessary for the support of the debtor and any dependent.

Hawaii - Haw. Rev. Stat. §651-124. The exemption does not apply to contributions made to a plan or arrangement within three years before the date a civil action is initiated against the debtor.

Idaho - Idaho Code Ann. §55-1011. The exemption only applies for claims of judgment creditors of the beneficiary or participant arising out of a negligent or otherwise wrongful act or omission of the beneficiary or participant resulting in money damages to the judgment creditor.

Illinois – Il 735 Ill. Comp. Stat.5/12-1006

Indiana - Ind. Code §34-55-10-2

Iowa – Iowa Code §627.6

Kansas - Kan. Stat. Ann. §60-2308

Kentucky – Ken Rev. Stat. Ann. §427.150(2)(f) Yes. The exemption does not apply to any (see note amounts contributed to an individual at beginning retirement account if the contribution of table) occurred within 120 days before the debtor filed for bankruptcy. The exemption also does not apply to the right or interest of a person in individual retirement account to the extent that right or interest is subject to a court order for payment of maintenance or child support.

Louisiana - La. Rev. Stat. Ann. §§ Yes contributions to an IRA is exempt 20:33(1) and 13:3881(D) if made less than one calendar year from the date of filing bankruptcy, whether voluntary or involuntary, or the date writs of seizure are filed against the account. The exemption also does not apply to liabilities for alimony and child support.

Maine - Me. Rev. Stat. Ann. IRAs are exempt only to the extent it.14, §4422(13)(E) reasonably necessary for the support of the debtor and any dependent.

Maryland - Md. Code Ann.Cts. IRAs are exempt from any and all & Jud. Proc.§11-504(h) claims of creditors of the beneficiary or participant other than claims by the Dept. of Health or Mental Hygiene. 42 | The Practical Tax Lawyer Winter 2008.

Massachusetts - Mass. Gen. L.Ch. 235, §34A. The exemption does not apply to an Massachusetts order of court concerning divorce, separate maintenance, or child support, or an order of court requiring an individual convicted of a crime to satisfy a monetary penalty or to make restitution, or sums deposited in a plan in excess of 7% of the total income of the individual within 5 years of the individual's declaration of bankruptcy or entry of judgment.

Michigan - Mich. Comp. Laws §600.6023. The exemption does not apply to (see note amounts contributed to an individual at beginning retirement account or individual re of table) retirement annuity if the contribution occurs within 120 days before the debtor files for bankruptcy. The exemption also does not apply to an Order of the domestic relations court.

Minnesota - Minn. Stat. §550.37. Exempt to a present value of $30,000 and additional amounts reason­ably necessary to support the debtor, spouse, or dependents.

Mississippi - Miss. Code Ann. §85-3-1 Yes No

Missouri - Mo. Rev. Stat. §513.430. If proceedings under Title 11 of United States Code are commenced by or against the debtor, no amount of funds shall be exempt in such proceedings under any plan or trust which is fraudulent as defined in Section 456.630 of the Missouri Code (since repealed), and for the period such person participated within 3 years before the commencement of such proceedings.

Montana - Mont. Code Ann. §31-2-106(3) Yes No. The exemption excludes that portion of contributions made by the individual within one year before the filing of the petition of bankruptcy which exceeds 15% of the gross income of the individual for that one-year period.

Nebraska - Neb. Rev. Stat. §25-1563.01. The exemption only applies to the extent reasonably necessary for the support of the Debtor and any dependent of the Debtor.

Nevada - Nev. Rev. Stat. §21.090(1)(q) Yes No. The exemption is limited to $500,000 in present value held in an individual retirement account, which conforms with Section 408.

New Hampshire – NH Rev. Stat. Ann. §511:2. Exemption only applies to extensions Hampshire of credit and debts arising after January 1, 1999.

New Jersey - NJ Stat. Ann. 25:2-1(b)

New Mexico - N.M. Stat. Ann. New Mexico §42-10-1, §42-10-2. Porting another person is exempt from receivers or trustees in bankruptcy or other insolvency proceedings, fines, attachment, execution, or foreclosure by a judgment creditor.

New York - N.Y. C.P.L.R. §5205(c). Additions to individual retirement accounts are not exempt from judgments if contributions were made after a date that is 90 days before the interposition of the claim on which the judgment was entered.

North Carolina - N.C. Gen. Stat. §1C-1601(a)(9)

North Dakota - N.D. Cent. Code §28-22-03.1(3). The account must have been in effect for a period of at least one year. Each individual account is exempt to a limit of up to $100,000 per account, with an aggregate limitation of $200,000 44 | The Practical Tax Lawyer Winter 2008 for all accounts. The dollar limit does not apply to the extent the debtor can prove the property is reasonably necessary for the support of the debtor, spouse, or dependents.

Ohio – OH Rev. Code Ann. SEPs and SIMPLE IRAs are not (see note at §2329.66(A)(10) exempt. beginning of table)

Oklahoma - Okla. Stat. tit. 31, §1(A)(20)

Oregon - OR. Rev. Stat. 18.358 es

Pennsylvania - 42 PA. Cons. Stat. §8124 Yes Yes. The exemption does not apply to Pennsylvania amounts contributed to the retire­ment fund within one year before the debtor filed for bankruptcy.

Rhode Island - R.I. Gen. Laws §9-26-4 Yes Yes. The exemption does not apply to an order of court pursuant to a judgment of divorce or separate maintenance, or an order of court concerning child support.

South Carolina - S.C. Code Ann. §15-41-30. The debtor's right to receive individual retirement accounts and Roth accounts is exempt to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.

South Dakota - S.D. Cod. Laws Exempts "certain retirement benefits" Dakota 43-45-16; 43-45-17 up to $1,000,000. Cites §401(a)(13) of Internal Revenue Code (Tax-Qualified Plan Non-Alienation Provision).

Tennessee - Tenn. Code Ann. §26-2-105

Texas - Tex. Prop. Code Ann. §42.0021

Utah – UT Code Ann. §78-23-5(1) The exemption does not apply to amounts contributed or benefits accrued by or on behalf of a debtor within one year before the debtor files for bankruptcy.

Vermont - Vermont. Stat. Ann. tit. 12, §2740(16)

Virginia - Virginia. Code Ann. §34-34. Exempt from creditor process to the same extent permitted under federal bankruptcy law. An IRA is not exempt from a claim of child or spousal support obligations.

Washington - Wash. Rev. Code §6.15.020

West Virginia - WV Code §38-10-4

Wisconsin - Wis. Stat. §815.18(3)(j). The exemption does not apply to an order of court concerning child support, family support, or maintenance, or any judgments of annulment, divorce, or legal separation.

Wyoming - Wyo. Stat. Ann §1-20-110

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