Thank you to my fellow CDFA, Kevin Worthley, from the Retirement Planning Company of New England, for this informative guest blog post below on 529 College Savings Accounts and some smart tips on dealing with them in divorce. You can reach Kevin directly at Kevin(a)RetirementPlanningCo.com
What to Do with the 529 College Savings
Accounts in Divorce?
By Kevin Worthley, CFP, CDFA
With the emotional difficulty and new household arrangements, asset division is a major part of the divorce process and that can include a 529 College Savings Account. The family house, other real estate, the family business and retirement/money accounts are all common assets that come into the settlement discussion or negotiations.
The so-called “Section 529” College Savings Account, similar in some ways to old ‘custodial trust’ accounts, is somewhat unusual in that only one person may be the owner or “Participant” of an account, (the child is usually the “beneficiary”). The Participant retains full control and discretion over the account, its investments and, importantly in the case of divorce, technical ownership and the disposition of the money.
529 College Savings Account and Taxes
The implications of this are very important to the divorce settlement discussion. First, whoever is the Participant legally owns the 529 College Savings Account, even though the contributions made to the account by gift, (including those by relatives, friends, etc) were intended for the beneficiary’s (student’s) college education. Second, the Participant may empty the account and use the money for purposes other than the intended student’s college expenses, should the Participant so choose. (Unlike custodial accounts, 529 College Savings Account do not become the property of the beneficiary at their age of majority (18 or 21)). Of course, there are IRS-imposed penalties and taxes for using the money for non-college reasons (10% penalty and Federal/State income taxes owed by the Participant on the appreciation (only) of the withdrawn money), but that aside, the Participant can do whatever he/she wishes with the account, including changing the beneficiary to another person. The beneficiary, the contributors and even the Successor Participant have no say in the matter.
With these powers over the account and considering most 529 College Savings Account were created during the marriage (and therefore are usually considered marital assets) and are generally for the benefit of the children of the marriage, how the 529 account(s) are handled during the divorce settlement process can be tricky. Depending upon whether the divorce is contentious or if there is a lack of trust between the parents, safeguards may need to be imposed on these accounts post-divorce to ensure the 529 account money goes toward the intended purpose; college expenses for the children.
How to Resolve the underlying issues of the 529 College Savings Account in Divorce?
To resolve this potential issue, parents (and their financial advisors or attorneys) should know that 529 College Savings Account can be split and divided between divorcing parents, where each parent would become the Participant of their respective account, and the one child-student can be the beneficiary of both accounts. This is not considered a non-qualified ‘taxable event’ (will not incur taxes or penalties), since no actual distribution of account assets took place. The change in “ownership” is similar to a change in named beneficiary. Even though the account assets are actually intended for the child, splitting the 529 accounts in this manner may help with settlement negotiations.
Other divorce safe-guards that may be used to ensure the college money actually goes toward college expenses:
- The divorce decree could stipulate the non-Participant parent of each account be named as the Successor Participant. Therefore, if the Participant-parent dies unexpectedly, the Successor-Participant parent immediately assumes ownership and control of the account rather than another non-parent person.
- Most investment account custodians have authorization forms that allow an “interested third-party” to receive regular statements and all notifications of changes to investments, sales, purchases and distributions from the account. The divorce decree could stipulate that Participant parent of the 529 account agree to approve such authorization for the non-Participant parent. This way, the parent who is not the owner of the account is still fully aware of all account activity, especially of non-qualified withdrawals or ‘draining the account’. This is not an iron-clad prevention of such an event, but at least the non-Participant parent would know soon after that a withdrawal had occurred and can take steps to prevent further withdrawals or other action to recover the money for their child.
- The divorce decree might further stipulate agreement on the part of both parents that the 529 money be used solely for college costs. Again, this may not actually prevent abuse of the account by the Participant-parent, but there may be a legal basis and liability for that parent to come up with the money needed for college that was taken improperly from the 529 account.
All of these points contain legal aspects, by the way, so be sure to consult qualified legal professionals as to how the laws in your state apply to these suggestions. If you’re not sure how your college accounts should be handled in divorce, consult with a knowledgeable professional for your particular situation.
Kevin Worthley is a Certified Financial Planner® practitioner, a Certified Divorce Financial Analyst™ and an investment advisor representative of the Retirement Planning Company of New England, a Registered Investment Advisor, 1287 Post Road, Warwick, RI 02888. He is also a registered representative of, with securities offered thru, Ridgeway and Conger, Inc. Member FINRA/SIPC. Office of supervisory control: 2123 Main St. New Woodstock, NY 13122, 315-662-7450. RPC and Ridgeway & Conger are not affiliated. Contact Kevin with questions at (800) 585-8696. 529 College Savings Account
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