Representation of and legal services for privately held businesses. Estate planning, probate, asset protection, business succession planning and employment issues.




Does an inherited Individual retirement account maintain its original exemption from creditor’s claims? Under Chapter 7 of the Bankruptcy Code, funds that are set aside for retirement needs need not be used to pay pre-retirement debts.

However,when the owner of the IRA dies, whether the exemption continues may depend upon where the beneficiary resides and what relationship the beneficiary had to the owner of the IRA if you are the beneficiary of such an IRA account.

There is no question that a spouse who inherits an IRA from their deceased spouse continues to enjoy the original exemption from creditor’s claims. However, if a child or unrelated person is the inheritor, then if the inheritor resides within the territory covered by the Seventh Circuit of the United States Court of Appeals, the exemption is not available, according to a recent decision by the Seventh Circuit Court of Appeals.

According to the Court, since the non-spousal inheritor of the IRA account must withdraw the funds within five years from the death of the original owner, it is no longer a retirement account and the beneficiary no longer has the benefit of the exemption. The decision of the Seventh Circuit is in conflict with the decisions of two other circuit courts of appeal; namely the Fifth and Eighth Circuits, each of which has held that the exemption from creditors continues while the funds remain in the IRA.

By reason of the conflicting positions of the Fifth, Eighth and Seventh Circuit Courts of Appeal, this issue may ultimately be decided by the Supreme Court. In the meantime, “location, location, location” is the determining factor.

About Alan Sohn

Alan E. Sohn received his Juris Doctorate from the College of Law of the University of Illinois. Mr. Sohn has been a partner in both large and smaller law firms and for the past 21 years has been in private practice. Mr. Sohn - Chicago Estate Planning Lawyer and Business Attorney - is admitted to practice law by the Illinois Supreme Court, the Trial Bar of the United States District Court for the Northern District of Illinois, Seventh Circuit Court of Appeals and the United States Supreme Court. He is also a member of the Chicago Estate Planning Council and the Illinois State Bar Association.

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