Protecting an Inherited IRA From Creditors

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Estate Planning Attorney

Regarding the protection of pensions and inherited IRAs under NJ law from creditors, predators and others, it seems apparent that despite the recent U.S. Supreme Court ruling in Clark v. Rameker, 134 S.Ct. 2242 (2014) (which I posted earlier), NJ law protects IRA’s and retirement accounts from creditors.

According to N.J.S.A. § 25:2-1b, “property held in a qualifying trust…shall be exempt from all claims of creditors,” barring a few exceptions which include violations of the Uniform Fraudulent Transfer Act, child/spousal support, and punitive damages arising from a civil action. The term “qualifying trust” is applied pursuant to the definitions provided under the Internal Revenue Code, 26 U.S.C. §§ 401, 403, 408, 408A, 409, 529, and 530. As such, a qualifying trust includes “individual retirement accounts…created or organized in the United States for the exclusive benefit of an individual or his beneficiaries.” The law goes on to establish further requirements, but it seems apparent that “qualifying trusts” include pensions and inherited IRAs.

This interpretation was highlighted in Gilchinsky v. Nat’l Westminster Bank N.J., 159 N.J. 463, 468 (1999), which held that “N.J. Stat. Ann. § 25:2-1 generally exempts property held in an individual retirement account (IRA) from attachment by creditors” since IRAs are qualifying trusts.

In sum, despite the Supreme Court’s ruling in Clark v. Rameker, NJ law protects pensions and inherited IRAs from creditors so long as there is no unlawful attempt to circumvent the laws governing their transfer.

To discuss your NJ asset protection and estate planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him atfniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.