Asset Protection

Are IRAs and 401(K)s Protected from Creditors?

By
Dominion
Updated:
October 8, 2023
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8 min read
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Saving for retirement is one of the most important goals in life. After all, you don’t want to hit your golden years, only to not have enough money to kick back and relax after decades of hard work.

But creditors and lawsuit plaintiffs can be frustratingly aggressive and committed, especially if you're a high-net-worth individual with a lot to lose. If you're worried about lawsuits and other financial threats, you might wonder whether your IRA or 401(k) is protected from creditors.

The answer? It depends.

The Employee Retirement Income Security Act Explained

It all starts with the Employee Retirement Income Security Act. Under this Act, most qualifying retirement accounts are protected from creditors, civil lawsuits, and even bankruptcy proceedings. The point of the Act is to prevent Americans from losing retirement funds that they saved over decades because of a single unfortunate legal ruling.

In addition to protecting your retirement funds from creditors, ERISA protects your retirement account from instances where your employer might declare bankruptcy. That way, if your employer makes bad business decisions, your retirement future doesn’t necessarily suffer.

Which Retirement Funds Are Protected by ERISA?

For a retirement plan to be ERISA-qualified, it must:

  • Be set up and maintained by your employer or a separate employee organization (not you)
  • Comply with federal rules for reporting and plan participation, funding, and vesting

Fortunately, the vast majority of all employer-sponsored or match accounts abide by ERISA qualifications. Odds are your 401(k) plan, tension, deferred compensation plan, or profit-sharing plan qualifies, so it benefits from this protection.

On top of that, ERISA might cover other retirement plans like employee health plans and welfare benefit plans. These can include health maintenance organization plans, dental and vision plans, and so on. Bottom line: federal law generally states that ERISA-qualified plans and retirement accounts aren’t vulnerable to creditor claims and similar hazards.

That’s because assets within these plans are held by independent trustees. They are exempt from seizure by creditors and technically aren’t owned by you until you start drawing from those accounts.

When Are ERISA-Qualified Plans Vulnerable?

That all said, some ERISA-qualified retirement plans might be vulnerable to creditors and other claims. Let’s take a look:

  • If your ex-spouse has a qualified domestic relations order or QRDO, they could claim some of your retirement funds as marital assets or as child support
  • The IRS can garnish your retirement plans for federal income tax debts
  • The federal government in general can also garnish or take your retirement account assets for criminal fines and penalties
  • Lastly, if you are ruled guilty in cases against your retirement plan through a criminal or civil judgment, the assets within your retirement accounts could be seized

To summarize, most employer-sponsored or employer-managed retirement accounts are protected from creditors. If you have a 401(k), the odds are good that the account is protected against all kinds of creditor-related threats, lawsuit damages, and similar claims.

Are IRAs Protected from Creditors?

The same is not true for IRAs or individual retirement accounts. That’s because your individual retirement account is not managed by another entity, like a trustee. By default, you run your IRA, so you are responsible for the assets within.

If a creditor comes after you for a debt that you supposedly owe, it will be trivial for them to get a judge to force you to take money out of your IRA to pay that debt. Similarly, if you are sued in civil or criminal court and are found guilty or liable, money in your IRA could be used to pay damages and court fees.

This isn’t universally true, fortunately. In fact, whether or not your IRA money is safe from creditors and lawsuits depends on your state of residence. 

For instance, Alabama protects both regular IRAs and Roth IRAs. In contrast, Georgia protects regular IRAs, but not Roth IRAs. Look up your state’s policies regarding IRA protection from creditors or speak to an attorney so you can plan accordingly.

If your state doesn’t protect individual retirement accounts from creditors and lawsuits, don’t expect any judge to go easy on you if you tell them that your life savings are in the account. 

They won’t care. There is plenty of case precedent for creditors and lawsuit plaintiffs taking money out of the retirement accounts of hard-working entrepreneurs.

IRA Protections Against Bankruptcy

Though IRAs are not protected against creditor claims, they are protected against bankruptcy. Any funds you place in an IRA are protected according to the Bankruptcy Abuse Prevention and Consumer Protection Act. In a nutshell, if you file for bankruptcy, you won’t have these funds garnished or taken away.

This is the only type of hazard that your IRA can protect you from. If you face any other possible threat vectors for your money or your assets, your IRA will be of no use whatsoever.

How to Protect Your Retirement Funds No Matter What

If you're feeling a little nervous, good. As a high-net-worth individual, you are uniquely vulnerable to creditors and lawsuits because, frankly, you're a bigger target than the average guy down the street. It's in your best interest to start protecting your retirement funds now, before you are under attack, compared to later when it might be too late.

The best way to do that? Get in touch with Dominion right away. With Dominion, you can set up an offshore asset protection trust that can act as both a safety net for your assets and an alternative means of retirement income.

Put simply, an offshore asset protection trust:

  • Is a secure, legally durable vehicle run by a knowledgeable, third-party trustee. The trustee will operate in an offshore or foreign jurisdiction compared to your own
  • Is not subject to US court rulings or creditor demands. Provided that your asset protection trust is drafted correctly, there won’t be anything a lawsuit plaintiff or creditor can do to make you take assets out of the trust to pay them
  • Can be set up, and the assets within invested, such that your estate builds wealth while sitting protected behind legal barriers. In this way, the assets that you put in an asset protection trust can continue to earn money for you, growing your retirement nest egg all the while

An asset protection trust in an offshore jurisdiction is the ideal means of estate defense for high-net-worth people, like entrepreneurs, doctors, and more. That's because it shields you against all kinds of threats, not just one.

Even better, when you work with Dominion, you can ensure your trust is set up so it works exactly according to your specifications. You can name beneficiaries, distribution schedules, and much more, and even draft your trust so that you start receiving distributions around retirement age.

It’s a practically foolproof way to safeguard your retirement funds from creditors in a way that IRAs and 401(k)s simply can’t match. If you already have funds in those kinds of accounts, you can transfer those funds into an offshore asset protection trust with Dominion’s help.

Contact Dominion Today

When you consider all your options, the best way to secure your retirement funds in perpetuity is to place them in an offshore asset protection trust. So long as you work with the experts at Dominion, you can ensure that your retirement funds continue to compound and generate new income.

That’s the kind of value we offer to each of our clients, and it’s why you should contact us today.

Dominion

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