Monday, July 1, 2019

Spouse May Roll Over Decedent's IRA Made Payable to Trust for Spouse's Exclusive Benefit with Spouse as Trustee



In PLR 201923002 (June 7, 2019), the IRS stated that a surviving spouse could roll over to an IRA in her own name a distribution from her late husband's IRA, even though the beneficiary was a trust for the benefit of the spouse, rather than the spouse. The IRS stated that, because the spouse was entitled to the IRA proceeds as the sole beneficiary of the trust during her life, she was effectively the individual for whose benefit the account is maintained for purposes of the roll-over rules.

Moreover the Decedent's IRAs will not be treated as inherited IRAs under IRC §408(d) as to taxpayer/surviving spouse. Also, taxpayer/surviving spouse was entitled to rollover distributions from stated IRAs into one or more IRAs set up and maintained in her own name, as long as rollover occurred within 60 days from date distribution was received from stated IRAs.

The Facts

The Decedent was married to Taxpayer (hereinafter “Spouse”) until his death, at which time both the Decedent and his Spouse were over 70 ½ years old.

At the time of his death, the Decedent owned an individual retirement account- the “Decedent's IRA.” The beneficiary of Decedent's IRA was a Trust for the benefit of the spouse. The spouse was the sole trustee and beneficiary of Trust which provided that the spouse could withdraw its net income and/or its principal. Additionally the spouse has the right to modify, amend, or revoke the Trust at any time and has the sole authority and discretion to distribute the Decedent's IRA proceeds to herself at any time. The spouse decided to roll the amounts paid to her from Decedent's IRA to an IRA in her own name rather than the Trust.

The critical question was the application of IRC §1.408-8, Q&A-5, which provides that a surviving spouse of an individual may elect to treat the spouse's entire interest as a beneficiary in the individual's IRA as the spouse's own IRA. In order to make this election, the spouse must be the sole beneficiary of the IRA and have an unlimited right to withdraw amounts from the IRA. If a trust is named the beneficiary of the IRA, this requirement is not satisfied even if the spouse is the sole beneficiary of the trust.

As the Trust was the named beneficiary the interpretation and application of this provision was critical.

Since the US Supreme Court Decision in Clark v. Rameker, 134 S. Ct. 2242, (2014) the trusteed Individual Retirement Account has become a way of shielding retirement account from creditors[1]. Accordingly it’s not uncommon to have a trusteed IRA rather than a custodial IRA. Indeed several institutional investment companies have picked up on this issued and have formulated their own trusteed IRA trusts.

The dilemma therefore is how to draft a trusteed IRA trust to avoid the application of IRC §1.408-8, Q&A-5. Most trusteed IRA trust have minimum distribution requirements and limited withdrawal powers. If the beneficiary is a spouse of a second marriage it is unlikely that the Settlor will give his or her spouse unlimited withdrawal powers. If the spouse is the spouse of a long standing marriage it is more likely that the spouse will have an unlimited withdrawal power.

In PLR 201923002 the spouse had an unlimited withdrawal power. The IRS reasoned that notwithstanding IRC §1.408-8, Q&A-5, which prohibits a rollover of an IRA to a spouse who is a beneficiary of a trust, because the spouse was entitled to the proceeds of Decedent's IRA as the sole beneficiary of Spouse’s Trust during her life, for purposes of applying IRC §408(d)(3)(A) to Decedent's IRA, the Spouse is effectively the individual for whose benefit the account is maintained. Accordingly, the IRS ruled that if the Spouse receives a distribution of the proceeds of Decedent's IRA, subject to the limitation of IRC §408(d)(3)(B), she may roll over the distribution (other than amounts required to have been distributed or to be distributed in accordance with section 401(a)(9)) into one or more IRAs established and maintained in her name.


[1] Brunetti, the Trusteed Individual Retirement Account, New Jersey Law Journal, (December 29, 2014).


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