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Developed and maintained by the Division of Legislative Automated Systems.
2007 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 34-34 of the Code of Virginia is amended and reenacted as follows:
§ 34-34. Certain retirement benefits exempt.
A. For the purposes of this section:
"Alternate payee" shall have the same meaning as provided under § 206 of the Employee Retirement Income Security Act of 1974 (ERISA). In the case of a retirement plan that is not subject to ERISA, the term "alternate payee" means an individual who has an interest in a retirement plan pursuant to a judgment, decree, or order, including approval of a property settlement agreement, that would be described in § 206 (d) (3) (B) of ERISA if the retirement plan were subject to ERISA.
"Annual benefit" means an amount payable as an annuity for the lifetime of the individual who claims the exemption provided under this section, assuming that annuity payments will commence upon the individual's attainment of age sixty-five or, if the individual attained age sixty-five on or before the exemption provided under this section is claimed, the individual's age on the date that the exemption is claimed.
"Retirement plan" means a plan, account, or arrangement that is intended to satisfy the requirements of United States Internal Revenue Code §§ 401, 403 (a), 403 (b), 408, 408 A, 409 (as in effect prior to repeal by United States P.L. 98-369), or § 457. Whether a plan, account, or arrangement is intended to satisfy the requirements of one of the foregoing provisions shall be determined based on all of the relevant facts and circumstances including, but not limited to, the issuance of a favorable determination letter by the United States Internal Revenue Service, reports or returns filed with United States or state agencies, and communications from the plan sponsor to participants.
B. The Except as otherwise provided in this section,
the interest of an individual under a retirement plan shall be exempt from
creditor process to the same extent provided under this section permitted
under federal bankruptcy law for such a plan. The exemption provided by
this section shall be available whether such individual has an interest in the
retirement plan as a participant, beneficiary, contingent annuitant, alternate
payee, or otherwise.
C. The exemption provided under subsection B shall not
apply to the extent that the interest of the individual in the retirement plan
would provide an annual benefit in excess of $25,000. If an individual has an
interest in more than one retirement plan, the limitation of this subsection C
shall be applied as if all such retirement plans constituted a single plan. The
amount required to provide an annual benefit of $25,000 shall be determined
under the following table:
Attained AgeCost of $1
When Exemptionof Annual
ClaimedBenefit
160.1482
170.1603
180.1734
190.1875
200.2028
210.2193
220.2371
230.2564
240.2773
250.2998
260.3241
270.3505
280.3789
290.4096
300.4429
310.4789
320.5178
330.5598
340.6054
350.6546
360.7080
370.7658
380.8284
390.8963
400.9699
411.0497
421.1363
431.2304
441.3326
451.4436
461.5645
471.6960
481.8394
491.9958
502.1665
512.3530
522.5571
532.7808
543.0260
553.2954
563.5915
573.9175
584.2771
594.6748
605.1150
615.6035
626.1472
636.7538
647.4330
658.1958
667.9989
677.8007
687.6009
697.3985
707.1924
716.9830
726.7706
736.5556
746.3393
756.1222
765.9054
775.6897
785.4763
795.2638
805.0529
814.8447
824.6403
834.4395
844.2415
854.0456
863.8522
873.6616
883.4742
893.2904
903.1106
912.9354
922.7653
932.6011
942.4415
952.2867
962.1367
971.9935
981.8558
991.7214
1001.5972
1011.4755
1021.3478
1031.2690
1041.1738
1051.0679
1060.7517
1070.0000
1080.0000
1090.0000
1100.0000
For example, the amount required to provide an annual
benefit of $25,000 to an individual who attained age 60 at the time the
exemption provided by this section is claimed is $127,875 ($25,000 times
5.1150).
D. The exemption provided under subsection B shall not
apply to amounts contributed to a retirement plan during the fiscal year of the
retirement plan that includes the date on which the individual claims the
exemption and for the two preceding fiscal years of the retirement plan other
than amounts that were exempt from creditor process immediately prior to being
contributed to the retirement plan. The exemption provided under subsection B
shall not apply to the earnings on contributions described in this subsection.
E. The exemption provided under subsection B shall not
apply to claims made against an individual by the alternate payee of such
individual or to claims made against such individual by the Commonwealth in
administrative actions pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title
63.2 or any court process to enforce a child or child and spousal support
obligation.
F D. If two individuals who are married or were
married are entitled to claim the exemption provided under subsection B of an
interest under the same retirement plan or plans and such individuals are
jointly subject to creditor process as to the same debt or obligation and the
debt or obligation arose during the marriage, then the exemption provided under
subsection B as to such debts or obligations shall not exceed, in the
aggregate, the amount that would provide an annual benefit of $25,000 the
exemption permitted under federal bankruptcy law for such a plan. The maximum
amount that may be exempted exemption permitted under federal bankruptcy
law shall be allocated among such persons in the same proportion as their
respective interests in the retirement plan or plans.
G E. The exemption provided under this section
must be claimed within the time limits prescribed by § 34-17.
H. A retirement plan established pursuant to §§ 408 and 408
A of the Internal Revenue Code is exempt to the same extent as that permitted
under federal law for a qualified plan established pursuant to § 401 of the
Internal Revenue Code.
However, an individual who claims an exemption under
federal law for any retirement plan established pursuant to §§ 401, 403 (a),
403 (b), 409 or § 457 of the Internal Revenue Code shall not be entitled to
claim the exemption under this subsection for a retirement plan established
pursuant to § 408 or 408 A of the Internal Revenue Code.