Florida Statute 222.21: Pension, IRA, and 401(k) Protections

Florida Statute 222.21 shields tax-qualified retirement accounts and certain federal pension money from creditors, with no cap on the protected balance. It covers traditional and Roth IRAs, 401(k)s, 403(b)s, 457(b)s, SEP-IRAs, and SIMPLE IRAs, and it keeps that protection intact when accounts pass to a beneficiary or to a former spouse in a divorce. Because Florida has opted out of the federal bankruptcy exemptions, this statute is the main tool Florida residents use to keep retirement savings out of a creditor’s reach.¹

What the Statute Protects

Section 222.21(2)(a) exempts money, assets, and ownership interests in any fund or account that qualifies for tax-exempt treatment under the Internal Revenue Code. In everyday terms, that includes:

Traditional and Roth IRAs (IRC §§ 408 and 408A)
401(k) plans and other profit-sharing plans (IRC § 401(a))
403(b) tax-sheltered annuity plans used by teachers and nonprofit employees
457(b) deferred compensation plans for state and local government workers
SEP-IRAs and SIMPLE IRAs under IRC § 408

The exemption reaches any plan that has been preapproved by the IRS as tax-exempt or that has received an individual determination letter confirming its qualified status. A plan without formal IRS approval can still qualify if the account holder proves by a preponderance of the evidence that it substantially complies with the tax-exemption requirements.¹

There is no dollar limit. The federal bankruptcy system caps IRA protection at $1,711,975 for cases filed between April 2025 and March 2028. Florida’s statute protects the entire balance regardless of size.¹

One point trips people up. Your plan does not have to be covered by ERISA to get this protection. Section 222.21(2)(b) says so explicitly.¹ Solo 401(k)s, government plans, church plans, and IRAs sit outside ERISA and still qualify. The test is tax-qualification status, not ERISA coverage.

Inherited IRAs and Accounts Received in Divorce

Under federal bankruptcy law, inherited IRAs get no protection. The U.S. Supreme Court held in Clark v. Rameker that inherited IRAs are not “retirement funds” because the beneficiary can withdraw the entire balance at any time without penalty and cannot make new contributions.²

Florida fills that gap. Section 222.21(2)(c) provides that funds exempt during the original owner’s lifetime keep that exempt status after death when they pass to a beneficiary through a direct transfer or eligible rollover, including a transfer to an inherited IRA. The same protection applies to retirement account interests received through a divorce transfer. The legislature made this provision retroactive, so it covers inherited IRAs and divorce transfers regardless of when the account was created or the transfer occurred.¹

If you inherited a parent’s IRA and live in Florida, your creditors cannot reach it. That is a protection you would not have under federal bankruptcy exemptions.

Federal Pension Money Under Subsection (1)

Section 222.21(1) covers a separate and narrower category: money received as a pensioner of the United States. That includes federal pension payments such as military retirement pay and civil service pensions. Federal pension money received within three months before a creditor initiates garnishment, attachment, or execution is exempt, but the debtor must file an affidavit or otherwise show the money is necessary for the support of the debtor or the debtor’s family.¹

Once filed, the affidavit serves as presumptive proof, and the court must release any pension money being held. This is different from the retirement account exemption in subsection (2), which applies automatically based on the account’s tax-qualified status without any showing of need.

When Creditors Can Still Reach the Money

Section 222.21(2)(d) carves out two situations where an otherwise-protected retirement account is not fully off-limits:

A qualified domestic relations order can direct payment to an alternate payee, typically a former spouse. Once the alternate payee receives those funds, the assets become exempt from that person’s own creditors, with one exception for the Florida Department of Revenue.
A surviving spouse who elects to take the statutory elective share under Part II of Chapter 732 can reach retirement account assets that would otherwise be exempt.

Federal tax liens are not on that list. The IRS can still reach retirement accounts, but its authority comes from federal law (26 U.S.C. § 6334), not from anything Florida Statute 222.21 does or does not say.¹ The state exemption does not block a federal tax levy.

How to Claim the Exemption in a Garnishment

The protection is not automatic once a creditor comes after your account. Florida Statute 77.041 requires you to act. When a garnishment writ issues, the court sends the debtor a notice explaining the right to claim exemptions. You must complete a sworn claim of exemption form, have it notarized, and file it with the clerk within 20 days of receiving the notice. A copy also goes to the plaintiff or the plaintiff’s attorney and to the garnishee.³

Miss the 20-day window and you can lose the exemption entirely, even if the account clearly qualifies. If you do file on time and the plaintiff does not contest the claim within the response period (8 business days for hand delivery, 14 business days for mailed service), the writ dissolves automatically without a hearing. If the plaintiff objects, the court schedules a hearing as soon as practicable.³

Documentation matters. If your plan has an IRS determination letter, keep it accessible; that letter reflects the IRS’s view of whether the plan qualifies for tax-exempt treatment and speeds up any challenge to your claim.⁴

Why Florida’s Exemption Beats the Federal Version

Florida has opted out of the federal bankruptcy exemptions. Under Section 222.20, Florida residents filing bankruptcy cannot use the exemptions in 11 U.S.C. § 522(d) and must rely on Florida’s own exemptions instead.⁵

For retirement accounts, that opt-out helps you. Federal exemptions cap traditional and Roth IRA protection at $1,711,975 (for cases filed between April 2025 and March 2028), while giving unlimited protection to employer-sponsored plans like 401(k)s. Florida draws no such line. If you have $3 million in a Roth IRA, Florida shields the whole balance; under the federal cap, roughly $1.3 million would be exposed.¹ The inherited IRA protection in 222.21(2)(c) is another place where Florida outperforms the federal system, since Clark v. Rameker leaves those accounts unprotected in states that follow the federal exemptions.

Where Things Go Wrong

A few practical pitfalls catch people even when the statute plainly favors them.

The 20-day claim deadline under Section 77.041 is the most common trap. Courts have little discretion to extend it, so a missed deadline can hand the creditor money the statute would otherwise have kept out of reach.

Disputes over whether a plan actually qualifies for tax-exempt treatment can be expensive. Without IRS preapproval or a determination letter, the burden falls on you to prove substantial compliance, which may mean expert testimony and litigation costs that outrun the amount in dispute. Self-directed IRAs holding non-traditional assets tend to draw extra scrutiny.

Moving states changes the analysis. Section 222.21 is Florida law; if you relocate, your new state’s exemption framework applies, and some states cap IRA protection or exclude inherited IRAs. If you have recently moved to Florida and file bankruptcy, federal law (11 U.S.C. § 522(b)(3)(A)) uses your residence during the 730 days before filing to decide which state’s exemptions govern.

Finally, the statute keeps creditors out; it does not keep you from voluntarily tapping the account. Pulling retirement money to pay debts can trigger income tax and early-withdrawal penalties, and once the funds leave the account, they leave the exemption behind too.

1
Florida Senate. Florida Statutes 222.21 – Exemption of Pension Money and Certain Tax-Exempt Funds or Accounts From Legal Processes
2
Justia U.S. Supreme Court Center. Clark v. Rameker, 573 U.S. 122 (2014)
3
Florida Senate. Florida Statutes 77.041 – Notice to Individual Defendant for Claim of Exemption From Garnishment; Procedure for Hearing
4
Internal Revenue Service. Determination Letters for Individually Designed Retirement Plans FAQs
5
Florida Senate. Florida Statutes 222.20 – Nonavailability of Federal Bankruptcy Exemptions