Is His 401k Community Property?

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Dear Esq,


My husband and I have been married for 21 years. We live in California, and I am considering a divorce. Is his 401K considered community property? What about our separate IRA accounts?


Dear Wondering,

California is indeed a community property state. Generally speaking, anything acquired during the marriage is considered to be community property, while anything acquired before the marriage, or following separation or death, is considered to be the separate property of the spouse acquiring it.

Community property is typically divided equally between spouses upon divorce or death, and after any offsets such as community debt. Even though your IRA accounts may be kept separate, to the extent that each of you contributed to your accounts during the marriage, they can be considered to be community property. This would hold true of your husband’s 401k as well.

That said, Federal law can trump state community property law, and it is not at all unusual for a retirement fund to be regulated by Federal law in a way which exempts it from community property distribution. Therefore you should check first with the plan administrator for each of the retirement plans, to determine whether they are regulated by any Federal law which would affect their community property nature. Then you should take that information and any remaining questions which you may have to an attorney who practices family law in your state.

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