Florida Statute 222.21 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XV
HOMESTEAD AND EXEMPTIONS

Chapter 222
METHOD OF SETTING APART HOMESTEAD AND EXEMPTIONS

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F.S. 222.21

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.

F.S. 222.21 on Google Scholar

F.S. 222.21 on Casetext

Amendments to 222.21

Arrestable Offenses / Crimes under Fla. Stat. 222.21

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 222.21.

Annotations, Discussions, Cases:

Cases Citing Statute 222.21

Total Results: 11

Garcia-Lawson v. Lawson

Court: District Court of Appeal of Florida | Date Filed: 2017-02-08

Citation: 211 So. 3d 140, 2017 WL 514338, 2017 Fla. App. LEXIS 1544

Snippet: benefits. Id. at 638. Relying upon then-section 222.21(2), Florida Statutes (1997), which provided that

Joel M. Weissman, P.A. v. Abou-Sayed

Court: District Court of Appeal of Florida | Date Filed: 2013-02-06

Citation: 107 So. 3d 1163, 2013 WL 440110, 2013 Fla. App. LEXIS 1849

Snippet: creditors’ liens by operation of statute, see §§ 222.21 & 222.14, Fla. Stat. (2010), the record supports

Robertson v. Deeb

Court: District Court of Appeal of Florida | Date Filed: 2009-08-14

Citation: 16 So. 3d 936, 2009 Fla. App. LEXIS 11322, 2009 WL 2476529

Snippet: entitled to the exemption set forth in section 222.21(2)(a), Florida Statutes (2008), because that section

Church v. Hanft

Court: District Court of Appeal of Florida | Date Filed: 2004-02-25

Citation: 870 So. 2d 185, 2004 Fla. App. LEXIS 2145, 2004 WL 360868

Snippet: benefits to Church, a judgment creditor. See § 222.21(2)(a), Fla. Stat. (2003)(“any money ... payable”

Lawler v. Suntrust Securities, Inc.

Court: District Court of Appeal of Florida | Date Filed: 1999-08-20

Citation: 740 So. 2d 592, 1999 Fla. App. LEXIS 11132, 1999 WL 628969

Snippet: B.R. 156 (Bankr.N.D.Tex.1980). Nor can section 222.21, Florida Statutes, exempt the IRA from the levy

DeSantis v. DeSantis

Court: District Court of Appeal of Florida | Date Filed: 1998-07-29

Citation: 714 So. 2d 637, 1998 WL 422276

Snippet: trial court entered the QDRO pursuant to section 222.21(2)(b), Florida Statutes (1997), which excepts pension

Siegel v. Siegel

Court: District Court of Appeal of Florida | Date Filed: 1997-09-24

Citation: 700 So. 2d 414, 1997 WL 586790

Snippet: Contrary to appellant's argument, the section 222.21(2)(a), Florida Statutes (1995), exemption of an

Beardsley v. Admiral Ins. Co.

Court: District Court of Appeal of Florida | Date Filed: 1994-12-21

Citation: 647 So. 2d 327, 1994 Fla. App. LEXIS 12384, 1994 WL 706229

Snippet: to exemption under section 222.21, Florida Statutes (1993). Section 222.21 provides in part: Money received

Bd. of Pension Trustees v. Vizcaino

Court: District Court of Appeal of Florida | Date Filed: 1994-04-22

Citation: 635 So. 2d 1012, 1994 WL 141209

Snippet: expressly concludes that Sections 61.075, 61.076, and 222.21, Florida Statutes, implicitly repealed Section

Dunn v. Doskocz

Court: District Court of Appeal of Florida | Date Filed: 1991-12-10

Citation: 590 So. 2d 521, 1991 Fla. App. LEXIS 12257, 1991 WL 259258

Snippet: presented for review is the effective date of section 222.21, Florida Statutes (1989), which exempts retirement

Ellison v. Goldstein

Court: District Court of Appeal of Florida | Date Filed: 1963-06-04

Citation: 154 So. 2d 202, 1963 Fla. App. LEXIS 3299

Snippet: to the defendant, ALAN ELLISON, the sum of $11,222.21, within the 5 day period next following thereafter