Not All Retirement Plans Are Created Equal - ERISA Top-Hat Plans Constitute Property of the Bankruptcy Estate

As many bankruptcy practitioners are aware, the Bankruptcy Code excludes Employee Retirement Income Security Act of 1974 (ERISA)¹“qualified” retirement plans, such as employer-sponsored pensions or 401(k) plans, from the bankruptcy estate. Lacking knowledge of the intricacies of ERISA, many practitioners assume that all ERISA retirement plans are either excluded from the Code’s definition of property of the estate or are exempt under applicable state or federal law.

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