Warning: Don’t Let Creditors Inherit from You or Your Spouse

Estate Planning strategies to help surviving spouse protect inherited IRA from creditors

Although a surviving spouse receives special treatment when inheriting a retirement account such as an IRA (the ability to roll over the account into a personal retirement account and to stretch the distributions over their lifetime), the retirement account you leave for your spouse can still be seized in a divorce, a lawsuit, or a bankruptcy proceeding.

Three Options Available to Surviving Spouses

When your surviving spouse inherits your IRA, he or she generally has three options:

1. Cash out the inherited IRA and pay the income tax

Warning! The cashed-out IRA will not have creditor protection and accelerates taxation. Once your spouse cashes out the account, he or she may use the money in any way. In addition, if your spouse dies before all the money has been spent, he or she can leave the money to anyone (even a mere acquaintance who was unknown to you).

2. Maintain the IRA as an inherited IRA

Warning! The inherited IRA will not have creditor protection. However, under the Setting Every Community Up for Retirement Enhancement (SECURE) Act, a surviving spouse can take the required minimum distributions from this account over his or her lifetime without being held to the ten-year rule, as most other beneficiaries are.

3. Roll over the inherited IRA and treat it as his or her own

Warning! The spousal rollover may offer some creditor protection but not in all cases. In addition, depending on whom your spouse leaves his or her retirement account to, there is now a larger sum of money to be distributed by the end of the tenth year after his or her death, accelerating additional income taxes for the next beneficiary.

Many find it frustrating that a stranger can swoop in and take their hard-earned money. Fortunately, there is a solution: a properly drafted standalone retirement trust (SRT).

Properly Drafted Standalone Retirement Trusts Can Provide Creditor Protection for the Surviving Spouse

A standalone retirement trust (SRT) is a special type of trust designed to be the beneficiary of your retirement accounts after you die. It can protect your retirement account funds from your beneficiary’s creditors. In fact, we can include trust provisions that specifically protect your surviving spouse in situations such as

second marriages;
divorce;
lawsuits from car accidents, malpractice, or tenants;
business failure; and
bankruptcy.

Want To Know More?

The bottom line is that a properly drafted SRT is often your best option for protecting your retirement accounts after you die. Want to know more? Call Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning, veterans pension planning, and Medicaid planning attorney, at (443) 741-1088; (301) 941-7809 or (202) 640-2133. We look forward to working with you.

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL OR TAX ADVICE.

By Andre O. McDonald | Posted on April 5, 2021