California Private

Retirement Plans

Voidable Transactions Issues

With California Private Retirement Plans


While the assets held in a California Private Retirement Plan may be exempt from creditors, those same creditors may still challenge the transfers which were made to the Plan under a voidable transaction (was: fraudulent transfer) theory. For information on voidable transactions generally, see


While technically there are five tests for what constitutes a voidable transaction, in the private retirement plan context a voidable transaction claim will typically arise if the creditor can prove either of two facts:


(1) The debtor was insolvent at the time that the Plan was funded (insolvency test); or


(2) The debtor funded the Plan with the intention of defeating creditors, as opposed to planning for retirement (intent test).


Several court opinions illustrate creditor attacks on California Private Retirement Plans by way of voidable transaction theories:



Very simply, if a person who has creditor problems or is under financial distress funds a California Private Retirement Plan, the odds of it is ultimately working to defeat creditors ranges from very low to non-existent. This hasn't stopped shameless promoters from pitching PRPs to their clients in these situations, since, after all, they still get paid even if it doesn't work for their client, or (as usually happens) puts their client into a worse posture than if the PRP had never been done at all.


Likewise, if a person overloads their California Private Retirement Plan, that can be evidence of an intent to defeat creditors, as opposed to fund the plan for retirement. The same can be true if unusual assets are placed in the Plan, such as an operating business or a personal residence. The truism "pigs get fat, hogs get slaughtered" should be heeded here on the conservative side.


That a promoter who markets California Private Retirement Plans as an asset protection tool was used by the debtor in forming such a Plan can constitute evidence of intent by the debtor that the Plan's primary purpose was to defeat creditors, and not for bona fide retirement purposes. Further caution that in voidable transactions cases, the attorney/client privilege is frequently vitiated -- meaning that normally protected attorney/client communications become discoverable to creditors. Thus, if there is evidence that the plan was designed primarily for asset protection purposes, such as might be found in planning memoranda, engagement letters, correspondence and e-mails, etc., a creditor might already be more than halfway to busting the Plan on a voidable transactions theory.


TEXT OF CCP § 704.115

California Code of Civil Procedure § 704.115.


     (a) As used in this section, “private retirement plan” means:


          (1) Private retirement plans, including, but not limited to, union retirement plans.


          (2) Profit-sharing plans designed and used for retirement purposes.


          (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1986, as amended, including individual retirement accounts qualified under Section 408 or 408A of that code, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code.


     (b) All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt.


     (c) Notwithstanding subdivision (b), where an amount described in subdivision (b) becomes payable to a person and is sought to be applied to the satisfaction of a judgment for child, family, or spousal support against that person:


          (1) Except as provided in paragraph (2), the amount is exempt only to the extent that the court determines under subdivision (c) of Section 703.070.


          (2) If the amount sought to be applied to the satisfaction of the judgment is payable periodically, the amount payable is subject to an earnings assignment order for support as defined in Section 706.011 or any other applicable enforcement procedure, but the amount to be withheld pursuant to the assignment order or other procedure shall not exceed the amount permitted to be withheld on an earnings withholding order for support under Section 706.052.


     (d) After payment, the amounts described in subdivision (b) and all contributions and interest thereon returned to any member of a private retirement plan are exempt.


     (e) Notwithstanding subdivisions (b) and (d), except as provided in subdivision (f), the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires. In determining the amount to be exempt under this subdivision, the court shall allow the judgment debtor such additional amount as is necessary to pay any federal and state income taxes payable as a result of the applying of an amount described in paragraph (3) of subdivision (a) to the satisfaction of the money judgment.


     (f) Where the amounts described in paragraph (3) of subdivision (a) are payable periodically, the amount of the periodic payment that may be applied to the satisfaction of a money judgment is the amount that may be withheld from a like amount of earnings under Chapter 5 (commencing with Section 706.010) (Wage Garnishment Law). To the extent a lump-sum distribution from an individual retirement account is treated differently from a periodic distribution under this subdivision, any lump-sum distribution from an account qualified under Section 408A of the Internal Revenue Code shall be treated the same as a lump-sum distribution from an account qualified under Section 408 of the Internal Revenue Code for purposes of determining whether any of that payment may be applied to the satisfaction of a money judgment.



In re Daniel, 771 F.2d 1352 (9th Cir., 1985).

In re Bloom, 839 F.2d 1376 (9th Cir., 1988).

In re Crosby, 162 B.R. 276 (Bk.C.D.Cal., 1993).

Yaesu Electronics Corp. v. Tamura, 28 Cal.App.4th 8, 33 Cal.Rptr.2d 283 (1994).

Schwartzman v. Wilshinsky, 50 Cal.App.4th 619, 57 Cal.Rptr.2d 790 (1996).

In re Friedman, 220 B.R. 670 (9th Cir.B.A.P., 1998).

In re Phillips, 206 B.R. 196 (Bk.N.D.Cal., 1997).

In re Stern, 345 F.3d 1036 (9th Cir., 2003).

McMullen v. Haycock, 147 Cal.App.4th 753, 54 Cal.Rptr. 3d 660 (2007).

In re Rucker, 570 F.3d 1155 (9th Cir., 2009).

In re Segovia, 404 B.R. 896 (2009).

In re Simpson, 557 F.3d 1010 (2009).

In re Beverly, 374 B.R. 221 (9th Cir., B.A.P., 2011).

Marriage of La Moure, 221 Cal.App.4th 1463, 15 Cal.Rptr.3d 417 (2013).

Salameh v. Tarsadia Hotel, 2015 WL 6028927 (S.D.Cal., 2015).


Only published court opinions are included; non-published opinions are not useful as legal precedent and should not be relied upon.





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