United States: Protecting Inherited IRAs From Bankruptcy Claims After Supreme Court Decision in Clark v. Rameker

Originally published in Anderson Kill Estate Planning & Tax Advisor (Autumn 2014)

On June 12, 2014, the U.S. Supreme Court unanimously held in Clark v. Rameker (134 S. Ct. 2242) that inherited IRAs are not exempt from the claims of creditors of a beneficiary who has filed for bankruptcy. The Supreme Court held that they are not protected "retirement funds" under the Bankruptcy Code. An inherited IRA is a traditional or Roth IRA that is payable to a designated beneficiary after the owner's death.

The court reasoned that in the absence of a statutory definition, the ordinary meaning of "retirement funds" should be understood to mean sums of money set aside for the day an individual ceases to work. The court pointed out that an inherited IRA is distinguishable from retirement funds for three reasons. First, the holder of an inherited IRA can never make contributions to the account. Second, the holder of an inherited IRA is required to begin withdrawing funds from the account no later than the end of the year following the year of the death of the owner, no matter how many years the holder may be from retirement. Third, said the court, the holder of an inherited IRA may withdraw the entire balance in the account at any time without penalty, unlike a traditional or Roth IRA, where withdrawals prior to age 59˝ are subject to a 10% penalty. Thus, if a person inherits an IRA from his or her grandfather in 2014 when that person is 23 years of age, that person must begin taking distributions from the account in 2016 when he or she is age 25.

Is the Outcome Different if the Surviving Spouse is the Beneficiary or if State Bankruptcy Law Protects Inherited IRAs?

Although the Supreme Court's reasoning in Clark is sound, there are some questions that are left unanswered. The court noted that where the surviving spouse is the beneficiary of an IRA, he or she has the option of either treating the IRA as that spouse's own IRA or as an inherited IRA. If the surviving spouse elects to treat the IRA as that spouse's own IRA, and if doing so is not considered a fraudulent transfer, then it would appear that the funds in that IRA would, under the court's reasoning, be treated as retirement funds that are exempt from a debtor's bankruptcy estate. The beneficiary in Clark was the owner's daughter, not her spouse, and so we do not know if the result would have been different if the spouse had inherited the IRA. Even if the surviving spouse elects to treat the IRA as that spouse's own IRA and obtains bankruptcy protection, it may come at a cost. For example, if the surviving spouse is age 45 he or she could not withdraw funds from a spousal IRA until age 59˝ without penalty. If that spouse needed funds immediately, then he or she would have the choice of 1) taking funds out of the IRA and paying a 10% penalty or 2) electing to treat the IRA as an inherited IRA and losing the bankruptcy exemption for the funds.

Debtors may elect to claim bankruptcy exemptions either under federal law or state law. Seven states have specifically exempted inherited IRAs from the debtor's bankruptcy estate: Alaska, Arizona, Florida, Missouri, North Carolina, Ohio and Texas. The court noted that the debtors in Clark had elected state law exemptions. The debtors in Clark filed for bankruptcy in Wisconsin, and so the issue of state law exemption for inherited IRAs did not arise. However, it would appear that if the debtors had resided in one of the foregoing seven states and satisfied the 2-year residency requirement of the Bankruptcy Code, the Supreme Court would have reached a different holding.

Nonetheless, there are actions that an IRA owner can take to protect the funds in his or her IRA in the event a designated beneficiary inherits such funds and subsequently files for bankruptcy.

Consider Naming a Trust as the Designated Beneficiary

If a trust is the designated beneficiary of an IRA, there would still be required minimum distributions that would have to be withdrawn from the IRA by the trust, but the trust could be drafted so that it could accumulate those distributions, rather than pay them out to the beneficiary, where they would be subject to claims of the beneficiary's creditors. Trusts have many other uses besides creditor protection, such as exclusion from the marital assets of the beneficiary in the event of his or her divorce, or as a special needs trust if the beneficiary receives public medical assistance such as Medicaid.

Just as there are drawbacks if a spouse-beneficiary treats an IRA as his or her own IRA instead of as an inherited IRA, the use of a trust that can accumulate has its negative aspects, too, such as the higher federal income tax rates to which trusts are subject. A complete discussion is beyond the scope of this article, but the use of a trust as the designated beneficiary of an IRA should be considered in appropriate situations.

Helpful Tip: In designing beneficiary designations, it is important to consider the financial health of the intended beneficiary and the likelihood of future claims against him or her. More care may be needed if the beneficiary is in a high-risk occupation, such as a neurosurgeon, than if he or she is a college professor.

The authors thank Dennis J. Nolan, chair of the firm's Bankruptcy and Restructuring Group, for his assistance in the preparation of this article.


John J. Hess is a shareholder in Anderson Kill's New York office. His practice concentrates on tax law and employee benefits.

Abbe I. Herbst is a shareholder in Anderson Kill's New York office. Ms. Herbst is admitted to practice in New York and New Jersey, and has broad experience in the areas of estate and tax planning and trust and estate administration. She is a member of numerous bar associations and the Financial Women's Association of New York.

About Anderson Kill

Anderson Kill practices law in the areas of Insurance Recovery, Commercial Litigation, Environmental Law, Estate, Trusts and Tax Services, Corporate and Securities, Antitrust, Banking and Lending, Bankruptcy and Restructuring, Real Estate and Construction, Foreign Investment Recovery, Public Law, Government Affairs, Employment and Labor Law, Captive Insurance, Intellectual Property, Corporate Tax, Hospitality, and Health Reform. Recognized nationwide by Chambers USA for Client Service and Commercial Awareness, and best-known for its work in insurance recovery, the firm represents policyholders only in insurance coverage disputes - with no ties to insurance companies and has no conflicts of interest. Clients include Fortune 1000 companies, small and medium-sized businesses, governmental entities, and nonprofits as well as personal estates. Based in New York City, the firm also has offices in Ventura, CA, Philadelphia, PA, Stamford, CT, Washington, DC, Newark, NJ and Dallas, TX.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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