In In re Hoffman, 2022 WL 203415 (11th Cir. January 24, 2022) (click here for .pdf) the issue before the Court was whether Roth IRAs were exempt pursuant to 11 U.S.C. §541(c)(2) or O.C.G.A. § 44-13-100(a)(2)(E).  This is a case of first impression in the Circuit, based upon recent amendments to the Georgia exemption statutes.

In his schedules, Debtor disclosed an interest in 1) Traditional IRA, 2) Roth Contributory IRA, and 3) Fidelity 401(k), and claimed exemptions for all three. Signature Bank objected to the exemptions for all accounts.  The Bankruptcy Court overruled the objections for the Traditional IRA and 401(k), but granted the objection for the Roth IRA based on the absence of recent authority for the new Georgia statutes.  The District Court upheld the Bankruptcy Court Order and the Debtor appealed.

In 2016 Georgia amended the exemption statutes, and O.C.G.A. § 18-4-6(a)(2)  now provides that “[f]unds or benefits from an individual retirement account or from a pension or retirement program shall be exempt from the process of garnishment until paid or otherwise distributed to a member of such program or beneficiary thereof.”  Thus, according to the Court, “Georgia’s current exemptions no longer differentiate between a traditional IRA and a Roth IRA. referring solely to “an individual retirement account.

We find that the development of the caselaw in this area and the subsequent amendments to the Georgia Code reflect the Georgia Assembly’s intention to clarify that both traditional IRAs as defined in 26 U.S.C. § 408 and Roth IRAs as defined in § 408A are exempt from garnishment, thus subjecting IRAs to a restriction on transfer by state statute, see [In re Meehan, 102 F.3d 1209 (11th Cir. 1997)] at 1211–12, and making both types of IRAs eligible for exclusion under the Bankruptcy Code. The current version of the exemptions provision compels this result. By no longer listing the kinds of retirement accounts that are exempt from garnishment, and instead exempting “individual retirement account[s],” there is no basis for us to conclude that Georgia intended to treat traditional IRAs differently than Roth IRAs for the purpose of garnishment. It is undisputable that a Roth Individual Retirement Account, by its very name and definition is “an individual retirement account.” See O.C.G.A. § 18-4-6(a)(2); see also 26 U.S.C. § 408A(a) (noting that Roth IRAs shall be treated “in the same manner” as IRAs for the purposes of this title).

As noted above, a debtor’s property is excluded from his bankruptcy estate pursuant to federal law if: (1) the debtor has “a beneficial interest in a trust”; (2) the interest has a restriction on transfer; and (3) the restriction is enforceable under either state or federal law. See § 541(c)(2); [In Matter of Upshaw, 542 B.R. 619 (Bankr. N.D. Ga. 2015)] at 622. Roth IRAs meet all three requisite elements. No one contests that, just like a traditional IRA’s corpus, a Roth IRA’s corpus qualifies as a beneficial interest in a trust. And, pursuant to both the 2006 and the 2016 amendments to the exemptions provision, Roth IRAs have a restriction on transfer that is enforceable under state law.


Scott Riddle’s practice focuses on bankruptcy and reorganization. Scott has represented businesses and other parties in Bankruptcy cases for almost 30 years.  You can contact Scott at 404-815-0164 or  For more information, click here.