QDRO | Ed Slott and Company, LLC


I have a client that was awarded 350k via QDRO from her husband's 401(k) in 2018. In that year, she rolled over 300k to her IRA and left 50k in the 401(k). She is now 58 years old. If she liquidates the 50k remaining in the 401(k), will she be subject to the 10% penalty?

I have seen conflicting information on this. Some say since it is still in the 401(k) that a distribution now would not be subject to the 10% penalty. Others have said that once she made the decision to rollover part of it to the IRA that she lost the ability to withdraw from the 401(k) penalty free. Which is correct? Thanks.

The former is correct.  The remaining 50k in the 401k is still under a QDRO order and a distribution from the 401k should be coded "2" in Box 7 of the 1099R. It it is not, she can claim the exception herself by filing Form 5329 and indicating exception code "06".  Of course, this penalty exception does not apply to distributions from IRA accounts.


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