Unlike 401(k)s, IRAs Could Be Fair Game in Lawsuits

Your retirement nest egg may be more vulnerable than you think.

Most states, including California, fail to provide regular individual retirement accounts and Roth IRAs with the kind of ironclad protection from creditors that is afforded pension benefits and 401(k) plans.

That means, depending on where you live and how you’ve saved, you could lose some or all of your retirement money should you be sued or file for bankruptcy.

Engineer John K. Wong, 36, learned about this potential pitfall recently when he was about to roll over his 401(k) from a previous employer.

In an earlier job change, Wong had simply transferred his 401(k) savings into his new employer’s plan. But this time his father-in-law suggested he roll the money into an IRA at discount brokerage Charles Schwab & Co. to take advantage of the much larger number of investment choices.

Wong was all set to do just that when a co-worker warned him that, in California, IRAs were more vulnerable than 401(k)s to lawsuits.

“He said a qualified 401(k) plan is safe from any court taking it in the event of a personal liability case, such as if someone slips and falls on your property, whereas IRAs are subject to available assets to pay out such claims,” Wong said.

Actually, California law does shelter money in IRAs and Roth IRAs that is deemed necessary to support the saver and his or her dependents in retirement, said Bill Norman, a certified tax specialist and estate planning attorney in Century City.

Any excess, however, is indeed subject to creditors’ claims in a lawsuit or bankruptcy.

Exactly how much would be protected is open to a judge’s interpretation, Norman said.

“It’s not necessarily an amount that would protect [someone’s] current lifestyle,” he said.

Although California law provides enough protection to prevent most workers from sinking into poverty, it may not be sufficient for high-earners, big savers and those who hope to pass some of their retirement largess to their children when they die.

Californians are better off than residents of some other states, who have even less protection. New Hampshire and New Mexico, for example, have no laws specifically protecting IRA savings from creditors.

Other states, such as Texas, Arizona and Washington, protect virtually everything inside an IRA from creditors. In Arizona, for example, only contributions made within the last 120 days can be subject to creditors’ claims in a bankruptcy.

(Interestingly, all three of those states also have no income tax, which makes their appeal to wealthy retirees even more clear.)

Congress is attempting to muddy the waters still further with new bankruptcy-law reforms that could preempt state laws and cap protection for IRA assets at a maximum of $1 million.

That might seem like a lot, but savvy investors know that inflation will significantly whittle a nest egg over a 20- to 30-year retirement.

Wong, like most of us, has no plans to go broke. He does, however, worry about the target his retirement savings could become in a lawsuit. A diligent saver, he hopes to have more money than he or his wife will need in retirement, so that they can leave his children, now 2 years old and 7 months old, an inheritance.

For Wong and others who worry about the safety of their assets, attorneys who are expert in creditor protection offer the following ideas:

* Boost insurance coverage. Liability insurance can help protect you from an otherwise disastrous lawsuit. Liability coverage is part of your homeowner’s and auto insurance policies, but the amount of coverage is typically limited to a maximum of $500,000.

If you have significant retirement assets, you may need to consider an umbrella liability policy, also called a personal liability policy, that can provide supplemental coverage of up to $10 million.

Most insurance experts recommend that you have liability coverage at least equal to your net worth, and many recommend you have two to five times that amount. An experienced insurance agent can help you assess your risk.

Some professionals may need additional liability coverage, such as malpractice or “errors and omissions” insurance. Malpractice insurance is designed for doctors, surgeons and dentists, while errors and omissions policies can be purchased by a wide variety of other professionals, from accountants to real estate agents, to cover liability related to their jobs.

* Rethink retirement rollovers. Like Wong, you might consider leaving your 401(k) money in a previous employer’s plan or transferring it directly into a new employer’s plan rather than rolling the money into an IRA when you change jobs. This assumes that the employers will cooperate; some may want you to take your money when you leave while others won’t accept transfers from other plans.

Also, you must weigh the quality of your investment choices: You may be better off taking the risk of rolling your money into an attractive investment within an IRA than suffering poor returns from inadequate choices in a 401(k).

If the 401(k) is acceptable and there are no other issues compelling a rollover into an IRA, many attorneys would advise leaving the money in a 401(k).

“I think it’s better to keep it protected,” Norman said. “Nobody knows when they’re going to get sued or if their insurance coverage is going to be inadequate.”

Still, experts say, you shouldn’t let fear rule your investments. IRAs and Roth IRAs are powerful tools for retirement savings; you shouldn’t fail to make new contributions just because of the chance of being sued.

* Consider a more IRA-friendly locale for retirement. If you’re close to retirement and considering a move anyway, the size of your IRA assets could be one of the deciding factors in where you move.

A state-by-state listing of IRA protections in bankruptcy can be found at the Investment Company Institute Web site at https://www.ici.org/retirement/99_state_ira_bnkrptcy.html.

However, creditors’ rights may be different if you’re sued; for complete and up-to-date information, consult an attorney familiar with an individual state’s laws.

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Liz Pulliam Weston is a personal finance writer for The Times and a graduate of the personal financial planning certificate program at UC Irvine. Questions can be sent to her at [email protected] or mailed to her in care of Money Talk, Business Section, Los Angeles Times, 202 W. 1st St., Los Angeles, CA 90012. She regrets that she cannot respond personally to queries. For past Money Talk questions and answers, visit The Times’ Web site at http://arstechnica.netblogpro.com/moneytalk.