Many assume that their retirement funds are protected from creditors, but depending on the type of retirement account you have—and the state where you live—that’s not necessarily the case. The good news is that many employer-sponsored plans generally have the best protection.
If you are concerned that creditors may come calling, here is what you need to know.
ERISA-Qualified Plans Offer the Best Protection
In general, retirement accounts that qualify under the Employee Retirement Income Security Act (ERISA) are protected from creditors, bankruptcy proceedings, and civil lawsuits. To be ERISA-qualified, a retirement plan must be set up and maintained by your employer (and/or a separate employee organization), and it must comply with federal rules regarding reports to plan participants, funding, and vesting.
- Most employer-sponsored plans, such as a 401(k), fall under ERISA and are protected from creditors.
- Non-ERISA plans, such as IRAs, simplified employee pension plans (SEPs), and 403(b) plans, don’t have the same level of protection.
- IRAs are protected under a separate law, but only if you file for bankruptcy.
In addition to employer-sponsored plans, ERISA may cover employee health and welfare benefit plans. Common ERISA-covered plans include medical, surgical, hospital or health maintenance organization (HMO) plans, health reimbursement accounts (HRAs), health flexible spending accounts (FSAs), dental and vision plans, prescription drug plans, disability insurance, life insurance, and 419(f)(6) and 419(e) welfare benefit plans.
Even retirement funds in ERISA plans may not be safe from an ex-spouse or the IRS.
The assets in these plans are typically held by an independent trustee and, as with many employer-sponsored plans, are exempt from seizure by any creditors.
The Power of the Anti-Alienation Clause
An important feature of ERISA-qualified plans—such as 401(k)s—is the anti-alienation clause, which states that funds deposited in a qualified retirement plan are held by the plan administrator for the benefit of plan participants, and participants cannot freely sell, transfer, or give them away.
The clause also states that your rights to the benefits can’t be taken away, which effectively prevents creditors from getting the assets in your plan. The funds are not legally yours until you withdraw them as income during retirement so they can’t be used to satisfy personal debts.
When ERISA Plans Are Vulnerable
ERISA-qualified plans may be at risk under certain circumstances and can be seized by:
- Your ex-spouse, under a qualified domestic relations order (QDRO), to the extent of your ex-spouse’s interest in the benefits as a marital asset or as part of child support
- The IRS, for federal income tax debts
- The federal government, for criminal fines and penalties
- Civil or criminal judgments, in cases of your own wrongdoing against the plan
Non-ERISA Plans Are Not Always Protected
Plans that are not ERISA-qualified do not offer the same level of protection when it comes to creditors, bankruptcy, and lawsuits. Common types of non-ERISA retirement accounts include IRAs (traditional and Roth), simplified employee pension plans (SEPs), SIMPLE IRAs, Keogh Plans, 403(b) plans, government plans, church plans, and plans that don’t benefit employees (employer-only plans).
Although IRAs are not ERISA-qualified, the funds are protected under a separate law—the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005—but only if you file for bankruptcy.
Depending on the state you live in, your IRA and other non-ERISA plans may, or may not, be protected from creditors. Some states shield IRAs in nearly all instances, for example, while others offer only limited protection. If you are at risk of creditors pursuing you, speak to a local attorney who understands the nuances of your state. The laws can be complex.
The Bottom Line
The ultimate value of your retirement account depends on many factors, including how much you save each year, your time horizon, and the performance of the investments. But there’s something else that can undermine your retirement funds: creditors.
While many employer-sponsored retirement accounts—including most 401(k)s—are protected against creditors, that’s not always the case. If you have questions about your plan and whether or not it is ERISA-qualified, speak with its administrator.