222.21
Exemption of pension money and certain tax-exempt funds or accounts from legal processes.
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222.21 Exemption of pension money and certain tax-exempt funds or accounts from legal processes.—
(1) Money received by any debtor as pensioner of the United States within 3 months next preceding the issuing of an execution, attachment, or garnishment process may not be applied to the payment of the debts of the pensioner when it is made to appear by the affidavit of the debtor or otherwise that the pension money is necessary for the maintenance of the debtor’s support or a family supported wholly or in part by the pension money. The filing of the affidavit by the debtor, or the making of such proof by the debtor, is prima facie evidence; and it is the duty of the court in which the proceeding is pending to release all pension moneys held by such attachment or garnishment process, immediately, upon the filing of such affidavit or the making of such proof.
(2)(a) Except as provided in paragraph (d), any money or other assets payable to an owner, a participant, or a beneficiary from, or any interest of any owner, participant, or beneficiary in, a fund or account is exempt from all claims of creditors of the owner, beneficiary, or participant if the fund or account is:
1. Maintained in accordance with a master plan, volume submitter plan, prototype plan, or any other plan or governing instrument that has been preapproved by the Internal Revenue Service as exempt from taxation under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended, unless it has been subsequently determined that the plan or governing instrument is not exempt from taxation in a proceeding that has become final and nonappealable;
2. Maintained in accordance with a plan or governing instrument that has been determined by the Internal Revenue Service to be exempt from taxation under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended, unless it has been subsequently determined that the plan or governing instrument is not exempt from taxation in a proceeding that has become final and nonappealable; or
3. Not maintained in accordance with a plan or governing instrument described in subparagraph 1. or subparagraph 2. if the person claiming exemption under this paragraph proves by a preponderance of the evidence that the fund or account is maintained in accordance with a plan or governing instrument that:
a. Is in substantial compliance with the applicable requirements for tax exemption under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended; or
b. Would have been in substantial compliance with the applicable requirements for tax exemption under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended, but for the negligent or wrongful conduct of a person or persons other than the person who is claiming the exemption under this section.
(b) It is not necessary that a fund or account that is described in paragraph (a) be maintained in accordance with a plan or governing instrument that is covered by any part of the Employee Retirement Income Security Act for money or assets payable from or any interest in that fund or account to be exempt from claims of creditors under that paragraph.
(c) Any money or other assets or any interest in any fund or account that is exempt from claims of creditors of the owner, beneficiary, or participant under paragraph (a) does not cease to be exempt after the owner’s death by reason of a direct transfer or eligible rollover that is excluded from gross income under the Internal Revenue Code of 1986, including, but not limited to, a direct transfer or eligible rollover to an inherited individual retirement account as defined in s. 408(d)(3) of the Internal Revenue Code of 1986, as amended. An interest in any fund or account awarded or received in a transfer incident to divorce described in s. 408(d)(6) of the Internal Revenue Code of 1986, as amended, is exempt upon the interest being awarded or received and continues to be exempt thereafter. This paragraph is intended to clarify existing law, is remedial in nature, and shall have retroactive application to all inherited individual retirement accounts and to each transfer incident to divorce without regard to the date an account was created or the transfer was made.
(d) Any fund or account described in paragraph (a) is not exempt from the claims of an alternate payee under a qualified domestic relations order or from the claims of a surviving spouse pursuant to an order determining the amount of elective share and contribution as provided in part II of chapter 732. However, the interest of any alternate payee under a qualified domestic relations order is exempt from all claims of any creditor, other than the Department of Revenue, of the alternate payee. As used in this paragraph, the terms “alternate payee” and “qualified domestic relations order” have the meanings ascribed to them in s. 414(p) of the Internal Revenue Code of 1986.
(e) This subsection applies to any proceeding that is filed on or after the effective date of this act.
History.—s. 1, ch. 87-375; s. 1, ch. 98-159; s. 25, ch. 99-8; s. 5, ch. 2005-82; s. 1, ch. 2005-101; s. 1, ch. 2007-74; s. 1, ch. 2011-84; s. 1, ch. 2022-167.
Notes of Decisions
Cited in 115
cases (5 in the last 5 years), 1989–2025 · leading case: In Re Martinez
In Re Martinez (1989)
“Specifically, Fla. Stat. § 222.21 (2)(a) provides: *379 “(2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is…”
Marie v. Green (In Re Green) (2001)
“Fla. Stat. § 222.21 (2000). As stated above, the Trustee concedes that the Debtors’ annuity and all but one of the Debtors’ individual retirement accounts were funded by Dr.”
Keith A. Yerian v. Richard B. Webber II (2019)
“The IRA's primary asset was an LLC through which Yerian purchased, among other things, real estate and two used cars.”
In Re Edward Schlein and Kay Schlein, Debtors. Edward Schlein and Kay Schlein v. George E. Mills, Jr., Trustee, Florida (1993)
“21(2)(a) directly relates to an employee benefit plan covered by ERISA”; therefore, ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.”
In Re Suarez (1991)
“Prior to October 1, 1987, F.S. § 222.21 was not effective to exempt qualified ERISA plans from the claims of creditors.”
In Re Francisco (1996)
“21(2)(a) directly relates to an employee benefit plan covered by ERISA; and (4) ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.”
In Re Seilkop (1989)
“Furthermore, although several cases have followed the Mackey decision this Court finds that Fla.Stat. § 222.21 is not pre-empted by ERISA and follows its reasoning in In re Martinez, 107 B.”
In Re Gardner (1990)
“§ 222.21 entitled “exemption of pension money and retirement or profit-sharing benefits from legal processes” which attempts, albeit unsuccessfully, to provide citizens of the State of Florida with an exemption for ERISA-type plans and provides in pertinent part as follows:…”
In Re Smith (1990)
“21(2)(a) provides as follows: § 222.21 Exemption of Pension Money and Retirement or Profit-Sharing Benefits from Legal Processes.”
In Re Kimmel (1991)
“Fla. StatAnn. § 222.21(1) (West 1991); In re Horath, 116 B.”
Bakst v. Marks (In Re Marks) (1991)
“In his fourth point, Marks contends that the bankruptcy court committed reversible error by failing to give proper effect to the applicable exemption law, Fla. Stat. § 222.21 (2)(a). The trustee’s adversary suit proceeded upon the premise that the Keogh Account funds were…”
In Re Schlein (1990)
“Debtor’s Claim for Exemption of SEP/IRA Under Florida Statute § 222.21 A. An SEP/IRA is an employee benefit plan under Erisa The debtor, Edward Schlein, claims an exemption for his interest in a simplified employee pension (SEP) that is qualified under the Internal Revenue Code…”
— 222.21(1) — 3 cases
In Re Kimmel (1991)
“Fla. StatAnn. § 222.21(1) (West 1991); In re Horath, 116 B.”
— 222.21(2) — 21 cases
Marie v. Green (In Re Green) (2001)
“Fla. Stat. § 222.21 (2000). As stated above, the Trustee concedes that the Debtors’ annuity and all but one of the Debtors’ individual retirement accounts were funded by Dr.”
In Re Ard (2010)
In re Swarup (2014)
In Re Harris (1995)
In Re Mathusa (2011)
— 222.21(2)(a) — 40 cases
In Re Martinez (1989)
“Specifically, Fla. Stat. § 222.21 (2)(a) provides: *379 “(2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is…”
In Re Francisco (1996)
“21(2)(a) directly relates to an employee benefit plan covered by ERISA; and (4) ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.”
In Re Seilkop (1989)
“Furthermore, although several cases have followed the Mackey decision this Court finds that Fla.Stat. § 222.21 is not pre-empted by ERISA and follows its reasoning in In re Martinez, 107 B.”
In Re Edward Schlein and Kay Schlein, Debtors. Edward Schlein and Kay Schlein v. George E. Mills, Jr., Trustee, Florida (1993)
“21(2)(a) directly relates to an employee benefit plan covered by ERISA”; therefore, ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.”
In Re Gardner (1990)
“§ 222.21 entitled “exemption of pension money and retirement or profit-sharing benefits from legal processes” which attempts, albeit unsuccessfully, to provide citizens of the State of Florida with an exemption for ERISA-type plans and provides in pertinent part as follows:…”
— 222.21(2)(a)(1) — 1 case
In Re Baker (2009)
— 222.21(2)(a)(2) — 1 case
Welsh v. Martinez (2023)
— 222.21(2)(a)(l) — 1 case
In Re Baker (2009)
— 222.21(2)(b) — 2 cases
DeSantis v. DeSantis (1998)
— 222.21(2)(c) — 3 cases
In Re Kimmel (1991)
“Fla. StatAnn. § 222.21(1) (West 1991); In re Horath, 116 B.”
Dunn v. Doskocz (1991)
In Re Gurvich (1990)
— 222.21(a) — 3 cases
In Re Pettit (1998)
Matter of Lee (1990)
In Re Handshaw (1996)
— 222.21(a)(2) — 1 case
In Re Francisco (1996)
“21(2)(a) directly relates to an employee benefit plan covered by ERISA; and (4) ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.”
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