Legal Blog
The Weekly Scenario: Dividing Pursuant To A QDRO – IRA Vs. Employer-Sponsored Retirement Plan
Question: Is there a difference in the way an IRA and an employer-sponsored retirement plan is divided pursuant to a QDRO?
Answer: A qualified domestic relations order or QDRO is necessary to transfer employer plan assets due to divorce, but not necessary to divide an IRA.
The way to divide an IRA in fulfillment of a divorce decree is through a trustee to trustee transfer between spouse’s IRAs. It is incumbent upon the IRA owner to act in compliance with a specific divorce decree, not the IRA custodian. This means the divorce decree must be specific about the assets that are to be divided (including who is responsible for the fees, if any, and how they are to be paid).
In contrast, for an employer plan, a QDRO is required and should state the percentage or particular dollar amount that will be split. The plan assets will not be able to be split without the domestic relations order. However, the QDRO cannot force the plan to make any distribution that is not permitted by the plan administrator.
Comment: The employer plan may have a form QDRO available which could reduce the time needed for the company to approve it. Once approved, the (ex) spouse will then have control over his/her share of the plan assets and can withdraw the funds from the plan.
As always, if you have any questions or would like to learn more, please contact Steve Shane at sshane@offitkurman.com or .
ABOUT STEVE SHANE
Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.
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