Take a No-Penalty In-Service 401K Distribution

If you are under 59½ years of age and you participate (a) in a 401K sponsored by a private employer (current or former), or (b) in a 457 plan sponsored by a state, county, or city employer (including law enforcement or firefighters), or (c) in a 403(b) sponsored by a public school (teachers, school administrators, professors), or other tax-exempt organization such as a hospital or a church you can take up to a 100% in-service distribution from that account without paying the 10% early withdrawal penalty imposed by the IRS (26 U.S. C. §72(t)). This is not a loan – it’s a permanent withdrawal (distribution) from the retirement account. This withdrawal does not terminate your retirement account; it only reduces the balance. You will continue to make contributions to the plan and your employer will continue making its matching contributions.  

To take this penalty-free distribution, you must be married. If your 401K, 457, or 403(b) account is held by an administrator of a former employer, it must still be in that original employer account and not converted to an IRA – IRA withdrawals are subject to the early withdrawal penalty.

Although you and your spouse get to decide how much distribution you want to take, be aware that the distribution will become part of your gross, marital income for the year of distribution and may move you into a higher tax bracket. You must decide how much of a tax burden you want to take on.

My office will obtain a court order directing the plan administrator to remove from your account (you’ll be referred to as the “Plan Participant”) the amount you and your spouse have chosen to withdraw. The plan administrator will review the court order and upon approval will create an “Alternate Payee” account in your spouse’s name and will transfer the designated withdrawal from the Plan Participant’s account to the Alternate Payee account. Your spouse must then remove the money from the Alternate Payee account. Two options for withdrawing the money are available. One is taking a cash distribution and paying the income tax. The other is rolling the money into a tax-deferred account, such as a self-directed IRA. 

(1) Take a Cash Distribution and Pay the Income Tax.
If the money is taken as a cash distribution the full amount must be included as taxable income in the year of distribution. The plan administrator is required by the IRS to (a) withhold 20% of the withdrawal for income taxes and (b) issue a 1099-R in January of the following year informing the IRS of the amount of the distribution and that the distribution is not subject to the early withdrawal penalty. Once the money is in your hands you can invest it as you choose. For many married couples, a cash distribution could jump them into a higher, undesirable tax bracket. In such a case, rolling a part or all of the distribution into another tax-deferred account will defer taxation to a future date.

 (2)   Rollover the Withdrawal into a Tax-Deferred Account

The money can be rolled over, or transferred, into an existing or newly created self-directed IRA. This is a lateral transfer from one tax-deferred account to another and incurs no immediate tax liability. No taxes are withhld by the administrator. All returns on investments made from an IRA are paid back into the IRA. No tax is paid on the IRA’s earnings until money is withdrawn at a future date. Note, however, that once the money is rolled into an IRA, the exemption from the 10% early withdrawal penalty is lost. Consequently, a withdrawal from the IRA by an account owner who is under 59½ years of age will be subject to the early withdrawal penalty, in addition to paying income tax on the withdrawal. No income tax withholding is required on a withdrawal from an IRA.  CLICK HERE to Learn More About Tax-Deferred Options.

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