In Clark v. Rameker, decided on June 12, 2014, the U.S. Supreme Court boldly went where it has seldom gone before. It waded into the estate planning world and decided that the creditor protection rules that generally apply to IRAs do not apply to inherited IRAs.

The Federal law that governs retirement plans, known as ERISA, provides protections against creditors trying to raid your IRA in order satisfy their claims against you. The Clark case answered the question of whether those same protections apply to the unspent balance of your IRA that you leave to your spouse or children after your death. The answer is a resounding “no.”

This case is important for those of us who want to include protective measures in our estate plans to prevent a beneficiary’s ex-spouse or creditor from enjoying what was intended for the beneficiary. The good news is that there is a tried and true means of providing these kinds of protections despite the outcome in Clark.

Stand Alone Retirement Plan Trusts (SARPTs) are particularly attractive to those who have substantial (more than $250,000) in qualified retirement plan assets. Instead of naming your loved ones as beneficiaries of your IRAs, you name an irrevocable trust that divides into separate trusts for each of your beneficiaries upon your death. Each trust receives the annual distribution that the beneficiary otherwise would have received. The trustee then has the discretion to either distribute the money to each beneficiary, or to withhold the distribution of any beneficiary or beneficiaries who are in legal hot water.

The upsides of this strategy are that they provide creditor protection for retirement plan assets, and they also enable beneficiaries to “stretch out” distributions, so they pay income tax on those distributions in small increments, keeping the remaining assets growing for them on an income tax-deferred basis.

The downside is that if an IRA distribution is not distributed to the beneficiary in the year of receipt by the trustee, the trust (instead of the beneficiary) will pay the income tax on the distribution, and the tax rates for trusts are almost always higher than the tax rates for individuals. However, this is the one time that the beneficiary may appreciate seeing 40% of the distribution go to the IRS, because the alternative might be for 100% of it to go to a creditor or ex-spouse.

SARPTs can be helpful for the families of many IRA owners, and they are worth discussing with your trusted advisors.

 


Scott Makuakane, Counselor at Law
Focusing exclusively on estate planning and trust law.
Watch Scott’s TV show, Malama Kupuna
Sundays at 8:30 p.m. on KWHE, Oceanic channel 11
www.est8planning.com
O‘ahu: 808-587-8227 | maku@est8planning.com

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