Judgments

ORS 18.358
Certain retirement plans exempt from execution

  • exceptions


(1)

As used in this section:

(a)

“Beneficiary” means a person for whom retirement plan benefits are provided or their spouse.

(b)

“Internal Revenue Code” means the federal Internal Revenue Code as amended and in effect on December 31, 1998.

(c)

“Permitted contribution” means:

(A)

A contribution that, at the time of the contribution, is not taxable income to the beneficiary and, if the sponsor is a taxable entity, is tax deductible to the sponsor;

(B)

A nondeductible contribution by a beneficiary to a retirement plan to the extent that the contribution is permitted to be made under the Internal Revenue Code;

(C)

A deductible or nondeductible contribution to an individual retirement account to the extent the contribution is not subject to federal excise tax as an excess contribution;

(D)

A contribution, pursuant to a rollover or transfer, from one retirement plan to another, to the extent the federal tax deferred status is preserved at such time;

(E)

A rollover from an individual retirement account described in section 408 of the Internal Revenue Code to an individual retirement account described in section 408A of the Internal Revenue Code; and

(F)

Any earnings under a retirement plan that are attributable to a contribution described in subparagraphs (A) to (E) of this paragraph.

(d)

“Retirement plan” means:

(A)

A pension plan and trust, including a profit sharing plan, that is described in sections 401(a), 401(c), 401(k), 403 and 457 of the Internal Revenue Code, including that portion attributable to contributions made by or attributable to a beneficiary;

(B)

An individual retirement account or annuity, including one that is pursuant to a simplified employee pension, as described in section 408 or 408A of the Internal Revenue Code; and

(C)

Any pension not described in subparagraphs (A) and (B) of this paragraph granted to any person in recognition or by reason of a period of employment by or service for the Government of the United States or any state or political subdivision of any state, or any municipality, person, partnership, association or corporation.

(e)

“Sponsor” means an individual or entity that establishes a retirement plan.

(2)

Subject to the limitations set forth in subsection (3) of this section, a retirement plan shall be conclusively presumed to be a valid spendthrift trust under these statutes and the common law of this state, whether or not the retirement plan is self-settled, and a beneficiary’s interest in a retirement plan shall be exempt, effective without necessity of claim thereof, from execution and all other process, mesne or final.

(3)

Notwithstanding subsection (2) of this section:

(a)

A contribution to a retirement plan, other than a permitted contribution, shall be subject to ORS 95.200 (Definitions for ORS 95.200 to 95.310) to 95.310 (Short title) concerning fraudulent transfers; and

(b)

Unless otherwise ordered by a court under ORS 25.387 (Withholding more than amount authorized by law), 75 percent of a beneficiary’s interest in a retirement plan, or 50 percent of a lump sum retirement plan disbursement or withdrawal, shall be exempt from execution or other process arising out of a support obligation or an order or notice entered or issued under ORS 25.501 (Definitions for ORS 25.501 to 25.556) to 25.556 (Expeditious court hearings) or ORS chapter 25, 107, 108, 109, 110, 419B or 419C. [Formerly 23.170; 2011 c.317 §5; 2019 c.13 §3]

(formerly 23.170)

Notes of Decisions

Public employe pensions are exempt from execution to satisfy support obligations. Bresnan v. Bresnan, 42 Or App 739, 601 P2d 851 (1979)

Contributions to Keogh plan by self-employed physicians were not exempt from claims for creditors under this section. Hebert v. Fliegel, 813 F2d 999 (1987)

Social security benefits represent recipient's interest in retirement plan. Hobson v. Hobson, 136 Or App 516, 901 P2d 914 (1995)

Judgment based on value accruing to retirement account of domestic partner during period of cohabitation is not beneficial interest in retirement account and therefore is not exempt from execution. In re Wilbur, 126 F3d 1218 (9th Cir. 1997)

Law Review Citations

40 WLR 1 (2004)

Chapter 18

Notes of Decisions

If terms used by trial court suffice to convey court's concluding decision or decisions, and if terms are set forth in document properly titled as judgment, then judgment document contains judgment. Interstate Roofing, Inc. v. Springfield Corp., 347 Or 144, 218 P3d 113 (2009)


Source

Last accessed
Jun. 26, 2021