Your Retirement and Bankruptcy
Two Reasons Your Retirement is Probably Safe in Bankruptcy
One of the primary concerns of those facing bankruptcy: how will my assets be affected? The article, intended as a mere overview, focuses on filing bankruptcy and your retirement. If you are considering bankruptcy, consult a bankruptcy attorney in your area.
An Exemption Introduction: Your Retirement vs. Your Ferrari
First, it is important to understand that the bankruptcy code is rooted in public policy. As a result, bankruptcy laws contemplate keeping certain property deemed fundamental to a normal, quality life. For example, most people need transportation to get to and from work; as a result, almost every state’s bankruptcy laws allow an exemption for a car. The amount of each state’s car exemption varies, but it is a safe bet that your Honda will be protected and your Ferrari won’t be. Bankruptcy legislation recognizes the basic need for transportation, but not $300,000 luxury transportation. You get the idea. Using this framework, your retirement accounts are viewed by the code as much closer to a Honda Accord than a Ferrari. Saving for retirement is a common, necessary thing that most people do in one way or another. In recognition of this, bankruptcy laws provide an exemption for retirement accounts (IRA’s etc.) up to one million dollars. Therefore, the first reason your retirement is probably safe in bankruptcy is because it is exempt by law, meaning the trustee can’t liquidate it to pay back your unsecured creditors.
The Supreme Court Has Ruled That ERISA qualified 401(k) Accounts Are Not Part Of The Bankruptcy Estate
The minute a bankruptcy case is filed, an “estate” is created. All of the debtor’s property becomes subject to the oversight of the bankruptcy court and case trustee. In a chapter 7 case, non-exempt property is then subject to sale by the bankruptcy trustee. However, in Patterson vs. Shumate, the Supreme Court ruled that ERISA qualified 401(k) accounts are not part of the bankruptcy estate. This means that, regardless of value, your 401(k) is safe in bankruptcy assuming it is ERISA qualified. Most employer based 401(k) accounts are ERISA qualified, however, it is important to meet with a bankruptcy attorney to confirm.
Similar Posts:
- Bankruptcy Court Says Debtor Can Claim Wildcard Exemption Where Debtor Intends To Retain Upside Down House
- Exemption Laws: Your Shield Against Creditors
- Florida Supreme Court Expands Debtor’s Eligibility For $4,000 Wildcard Personal Property Exemption
- Why does my bankruptcy attorney want to know where I have been living?
- Real Estate Often Protected In current Market Says Braidwood Bankruptcy Attorney
Tags: Bankruptcy, Probably Safe, Two Reasons
Posted December 8, 2010 by Imogen Lay under Credit Report