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Does Filing for Bankruptcy Mean I Lose My 401k? Here’s What You Need to Know

401k and Bankruptcy401k and Bankruptcy

The money you’ve saved in your 401k retirement savings plan is one of your biggest concerns when it comes to filing for bankruptcy. Understanding what happens with your 401k and bankruptcy will put your mind at ease.

Most people spend their entire careers building retirement savings. They automatically put money in a 401k plan and might have an employer matching a portion of those contributions. Though it might not seem like much each month, over time it adds up and most people have a significant chunk of their retirement savings in their 401k by their 40s, 50s, and later.

But what happens if you hit a rough financial patch and need to file for bankruptcy? Does it affect the money you’ve invested for your retirement? Are the funds in your 401k savings plan safe from the bankruptcy trustee?

Here’s what you need to know:

401k and Bankruptcy Chapters

First, you need to understand that the chapter of bankruptcy you file affects the handling of your 401k. Retirement savings is handled differently in Chapter 13 than it is in Chapter 7.

In Chapter 13, your debt is paid out of your disposable income through a three- to five-year payment plan. Your property is not liquidated, which means your retirement savings, as well as your other assets, are safe.

Things are different when you file for Chapter 7. In Chapter 7 bankruptcy, the trustee liquidates your assets and uses the proceeds to pay a portion of your debt. The good news is the asset liquidation does not include your 401k. Your 401k retirement savings is protected as long as it qualifies under the Employee Retirement Income Security Act. Most plans do, as long as your employer contributed. However, double-check this before you file.

To learn more about the differences between Chapter 7 and Chapter 13 bankruptcy, check out this information from Credit Karma.

An experienced bankruptcy attorney protects your 401k and helps you make decisions about filing if any of your savings is at risk. Even if your plan does not qualify, there might be additional ways in which it is protected.

Does Your 401k Face Any Exemption Risk?

The general rule of thumb when filing for bankruptcy is that your 401k retirement savings plan is protected, but some things pose a risk.

Keep in mind, if you transfer funds from your 401k to a non-exempt account, the bankruptcy protections no longer apply. It’s at risk of liquidation the moment it leaves the 401k account.

Note that dumping a chunk of money larger than your usual transfer amount into a 401k account raises red flags for the bankruptcy trustee. An unusual transfer is suspicious and the trustee could gain access to anything you transferred into the account above and beyond the norm.

The best thing you can do is consult with an experienced bankruptcy attorney before moving any money into or out of your 401k investment plan.

Managing your 401k and bankruptcy can seem overwhelming, but with the right amount of experienced help, it doesn’t need to be. An attorney can answer your questions and ensure that your retirement savings is protected. This means you’ll be able to use bankruptcy as the tool it’s meant to be and improve your current financial situation, without putting your future at risk.

To schedule a consultation to discuss your concerns or learn more about how bankruptcy can help you, contact us at the Law Office of Robert M. Geller at 813-254-5696.

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