Does filing put my 401(k) or IRA at risk?

The account's tax status is what the exemption keys on. 11 U.S.C. § 522(b)(3)(C) reaches retirement funds to the extent they are in a fund or account exempt from taxation under the Internal Revenue Code sections it lists, and a filer electing the federal list uses § 522(d)(12). Whether a particular account meets that description, and whether any limit applies to the amount claimed, is a question to put to a lawyer with the statements in hand.

Does Social Security count for the means test?

The means test begins with Official Form 122A-1, which reports current monthly income and compares it to the median for your state and household size (Bankr. S.D. Iowa official guidance — Instructions - Bankruptcy Forms for Individuals). We do not publish a verified excerpt of the Bankruptcy Code's current-monthly-income definition on this page, so we do not restate line by line how benefit income is entered. The official form instructions and a bankruptcy lawyer can confirm that for your district.

What does it cost to file on a fixed income?

A Chapter 7 case carries a $245 filing fee (28 U.S.C. § 1930(a)(1)(A), (f)(1)), a $78 administrative fee (Bankruptcy Court Miscellaneous Fee Schedule, Item 8), and a $15 trustee surcharge (Bankruptcy Court Miscellaneous Fee Schedule, Item 9). A Chapter 13 case carries a $235 filing fee (28 U.S.C. § 1930(a)(1)(B)) plus a $78 administrative fee (Bankruptcy Court Miscellaneous Fee Schedule, Item 8). Courts accept an application to pay fees in installments, and Chapter 7 has a conditional waiver application (Bankr. D. Mass. official page — FAQs for Debtors).

What if my former employer files for bankruptcy and I receive retiree benefits from it?

That is a separate case with its own rule. 11 U.S.C. § 1114 governs payment of insurance benefits to retired employees and defines retiree benefits as payments for medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death, under a plan the employer maintained or established before its petition. It also provides for an authorized representative of the affected retirees and, in some circumstances, a court-appointed committee of retired employees.

Eligibility & means testing

Bankruptcy for Older Adults and Retirees

Retirement money and Social Security occupy a distinct place in bankruptcy. Funds held in accounts exempt from taxation under the Internal Revenue Code sections listed in 11 U.S.C. § 522(b)(3)(C) are commonly claimed as exempt, and 42 U.S.C. § 407 says Social Security moneys are not subject to the operation of any bankruptcy or insolvency law. What varies is home equity, vehicles, and which state's exemption list applies.

Key points

Retirement funds are exempted under 11 U.S.C. § 522(b)(3)(C) when they sit in a fund or account exempt from taxation under the Internal Revenue Code sections that provision lists; a filer electing the federal list uses § 522(d)(12) instead.
42 U.S.C. § 407(a) states that Social Security moneys are not subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
An exemption covers your interest or equity in property, not the object itself, and a valid lien can still be enforced after a discharge.
Which state's exemption list applies is set by domicile over the 730 days before filing under 11 U.S.C. § 522(b)(3)(A), not by where you live today.
Chapter 13 is the chapter with a mechanism to cure a mortgage default over time under 11 U.S.C. § 1322(b)(5); Chapter 7 has no equivalent.

If you are retired or close to it, the fear behind the question is usually specific: that filing would reach the retirement account you spent decades building, or the benefit check that covers your rent. Federal law treats both differently from ordinary savings, and the difference is written into the statute rather than left to discretion. This page sets out what the text says, what it does not settle, and what varies by state.

How does bankruptcy treat retirement money differently?

Filing creates an estate. Under 11 U.S.C. § 541(a)(1) that estate takes in all legal or equitable interests you hold when the case starts, and § 541(b) lists what stays out of it. Exemptions then come back out of the estate. 11 U.S.C. § 522(b)(3)(C) reaches retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. A filer who elects the federal exemption list under § 522(d) uses the parallel provision at § 522(d)(12) instead. Two cautions matter. An exemption covers your interest or equity in property rather than the object itself, and a valid lien can survive: a creditor may still foreclose a home mortgage or repossess a car after discharge (Bankr. E.D. La. official guidance — Chapter 7 Form Packet). And money already withdrawn and sitting in a checking account is no longer in a retirement account.

What changes the answer for someone on a fixed income?

Age itself changes nothing in the Bankruptcy Code. What moves the analysis is the shape of the balance sheet and where the income comes from. Under 11 U.S.C. § 109(a), only a person that resides or has a domicile, a place of business, or property in the United States may be a debtor, and § 109(b) lists who may not file under Chapter 7. Chapter 13 starts from a different requirement: 11 U.S.C. § 101 defines an individual with regular income as someone whose income is sufficiently stable and regular to enable payments under a Chapter 13 plan, and pension or benefit income can be regular in that sense. Beyond eligibility, the facts that commonly decide these cases are equity in a home, equity in a vehicle, whether a debt is secured, whether anyone cosigned, and which state's exemption list governs. None of those follow from how old you are.

What does federal law actually say about retirement funds and Social Security?

Two provisions do most of the work here, and both are worth reading in their own words. 11 U.S.C. § 522(b)(3)(C) exempts retirement funds held in a fund or account exempt from taxation under the Internal Revenue Code sections it lists; a filer electing the federal list uses § 522(d)(12). Separately, 42 U.S.C. § 407(a) provides that the right of any person to any future payment under that subchapter shall not be transferable or assignable, and that none of the moneys paid or payable or rights existing under it shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. Section 407(b) adds that no other provision of law may be construed to limit, supersede, or otherwise modify that section except by express reference to it. Section 407(c) allows tax withholding at the beneficiary's own request.

Where do state and local rules change the picture?

Exemptions are not exclusively state figures. 11 U.S.C. § 522(b)(2) makes the federal list at § 522(d) available unless the state law applicable under § 522(b)(3)(A) specifically does not authorize it. And which state's law that is comes from domicile, not from your current address: § 522(b)(3)(A) points to the place where your domicile was located for the 730 days immediately preceding filing, and, if it was not in a single state for that period, to the place where it was located for the 180 days preceding the 730-day period or for the longer part of that stretch. The closing sentence of § 522(b)(3) permits the federal list where that domicile rule would otherwise leave a debtor with no exemption. Districts add their own local rules, including on lien avoidance under § 522 (Neb. R. Bankr. P. 4003-1). Cases filed in Alabama and North Carolina use separate official lookups (U.S. Bankr. Ct. D. Alaska, The Forms Individuals and Married Couples Need to File Bankruptcy).

What does this look like in practice for a retiree?

Most retiree cases reduce to about four questions, and each is answered somewhere different. The table below maps them. Two points are worth drawing out. Chapter 13 is the chapter with a mechanism for mortgage arrears: 11 U.S.C. § 1322(b)(5) lets a plan provide for curing a default within a reasonable time and maintaining payments on a claim whose last payment falls due after the plan's final payment, and a Chapter 13 plan usually runs three to five years (Bankruptcy Administrator for the Eastern District of North Carolina, Chapter 13). Chapter 7 has no equivalent. The automatic stay is the other: 11 U.S.C. § 362(a) operates on filing against the commencement or continuation of actions and against acts to collect a claim that arose before the case, while § 362(b) lists what it does not reach. None of this turns on age. It turns on what you own, what you owe, and to whom.

What a retiree's question usually turns on
If you are asking	The law turns on	Where it is decided
Can my IRA or 401(k) be reached?	Whether the account is exempt from taxation under the sections listed in 11 U.S.C. § 522(b)(3)(C), or § 522(d)(12) on the federal list	Schedule C, and any objection to the claimed exemption
Can a creditor take my Social Security?	42 U.S.C. § 407(a), plus state garnishment limits preserved by 15 U.S.C. § 1677	State court, and then the bankruptcy case once filed
Can I keep a home I am behind on?	Whether a Chapter 13 plan can cure the default under 11 U.S.C. § 1322(b)(5)	Plan confirmation in a Chapter 13 case
Will collection actions pause?	The automatic stay under 11 U.S.C. § 362(a), subject to the exceptions in § 362(b)	Automatic on filing

What documents and information are involved?

The paperwork is the same paperwork everyone files; for a retiree, the retirement and benefit records are the part that takes longest to assemble. The forms ask for statements listing assets, income, liabilities, and the names and addresses of all creditors and how much they are owed (Bankr. D. Md. official page — Legal Overview). Exemptions are not automatic: property must be listed on Schedule C: The Property You Claim as Exempt (Official Form 106C), and property that is not listed may be sold by the trustee (Bankr. S.D. Iowa official guidance — Instructions - Bankruptcy Forms for Individuals). A Chapter 7 filer also completes the Chapter 7 Statement of Your Current Monthly Income (Official Form 122A-1), which compares income to the median for the state and household size; a second form follows only if income is above it. Courts additionally require a statement about your Social Security number, a certificate of credit counseling, and a creditor matrix (Bankr. D. Mass. official page — FAQs for Debtors).

Recent statements for every retirement account, pension, and annuity, including plan type
Your benefit award letter and recent deposit records
Deeds, mortgage statements, and any home equity loan or reverse mortgage documents
Vehicle titles and loan payoff figures
Medical bills, collection letters, and any lawsuit, judgment, or garnishment papers

What should you ask a lawyer?

Court staff cannot answer any of this. The clerk's office is prohibited from giving legal advice or assisting with the preparation of forms (Bankr. W.D. Ky. official guidance — Guide to Filing Bankruptcy without an Attorney), and other district guides say the same and direct filers to consult an attorney (U.S. Bankr. Ct. M.D. Ala., Consumer Pro Se Debtors Guide). That is not a formality. The questions that decide a retiree's case are fact-specific, and the answers depend on documents rather than on general rules, so bring the account statements, the benefit letter, and any lawsuit papers to the consultation. Cost is a fair thing to raise in the first ten minutes. Some districts also publish self-help material and run pro bono programs with income-based eligibility (COB official material — Guide for Debtors Filing Bankruptcy Without an Attorney), which is worth asking about before you assume representation is out of reach.

Which state's exemption list applies to me under 11 U.S.C. § 522(b)(3)(A), given where I have been domiciled?
Is each of my accounts exempt from taxation under the sections § 522(b)(3)(C) lists, and does any limit apply to the amount I can claim?
How is my benefit income entered on the means-test form in this district?
Which of my debts would fall under an exception to discharge in 11 U.S.C. § 523?
Which liens on my home or vehicle would survive, and can any of them be avoided under § 522?
Does an earlier bankruptcy case affect what I can file now?

Frequently asked questions

Does filing put my 401(k) or IRA at risk?: The account's tax status is what the exemption keys on. 11 U.S.C. § 522(b)(3)(C) reaches retirement funds to the extent they are in a fund or account exempt from taxation under the Internal Revenue Code sections it lists, and a filer electing the federal list uses § 522(d)(12). Whether a particular account meets that description, and whether any limit applies to the amount claimed, is a question to put to a lawyer with the statements in hand.
Does Social Security count for the means test?: The means test begins with Official Form 122A-1, which reports current monthly income and compares it to the median for your state and household size (Bankr. S.D. Iowa official guidance — Instructions - Bankruptcy Forms for Individuals). We do not publish a verified excerpt of the Bankruptcy Code's current-monthly-income definition on this page, so we do not restate line by line how benefit income is entered. The official form instructions and a bankruptcy lawyer can confirm that for your district.
Can a creditor garnish my Social Security?: 42 U.S.C. § 407(a) states that none of the moneys paid or payable under that subchapter are subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. Section 407(b) adds that no other provision of law may be construed to limit or modify it except by express reference. State law can restrict garnishment further, and 15 U.S.C. § 1677 preserves more limited state garnishment rules.
What does it cost to file on a fixed income?: A Chapter 7 case carries a $245 filing fee (28 U.S.C. § 1930(a)(1)(A), (f)(1)), a $78 administrative fee (Bankruptcy Court Miscellaneous Fee Schedule, Item 8), and a $15 trustee surcharge (Bankruptcy Court Miscellaneous Fee Schedule, Item 9). A Chapter 13 case carries a $235 filing fee (28 U.S.C. § 1930(a)(1)(B)) plus a $78 administrative fee (Bankruptcy Court Miscellaneous Fee Schedule, Item 8). Courts accept an application to pay fees in installments, and Chapter 7 has a conditional waiver application (Bankr. D. Mass. official page — FAQs for Debtors).
Is there an age limit, or an income floor, for filing?: No age limit appears in the eligibility provision. 11 U.S.C. § 109(a) says only a person that resides or has a domicile, a place of business, or property in the United States may be a debtor, and § 109(b) lists who may not file under Chapter 7. Chapter 13 has a requirement of a different kind: 11 U.S.C. § 101 defines an individual with regular income as one whose income is sufficiently stable and regular to enable plan payments.
What if my former employer files for bankruptcy and I receive retiree benefits from it?: That is a separate case with its own rule. 11 U.S.C. § 1114 governs payment of insurance benefits to retired employees and defines retiree benefits as payments for medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death, under a plan the employer maintained or established before its petition. It also provides for an authorized representative of the affected retirees and, in some circumstances, a court-appointed committee of retired employees.

Sources

11 U.S.C. § 522 — Exemptions · official source
11 U.S.C. § 541 — Property of the estate · official source
11 U.S.C. § 109 — Who may be a debtor · official source
11 U.S.C. § 101 — Definitions · official source
11 U.S.C. § 362 — Automatic stay · official source
11 U.S.C. § 1322 — Contents of plan · official source
11 U.S.C. § 523 — Exceptions to discharge · official source
11 U.S.C. § 1114 — Payment of insurance benefits to retired employees
42 U.S.C. § 407 — Assignment of benefits
15 U.S.C. § 1677 — Effect on State laws
Neb. R. Bankr. P. 4003-1
Bankr. E.D. La. official guidance — Chapter 7 Form Packet
Bankr. S.D. Iowa official guidance — Instructions - Bankruptcy Forms for Individuals
Bankr. D. Md. official page — Legal Overview
Bankr. D. Mass. official page — FAQs for Debtors
Bankr. W.D. Ky. official guidance — Guide to Filing Bankruptcy without an Attorney
U.S. Bankr. Ct. M.D. Ala., Consumer Pro Se Debtors Guide
U.S. Bankr. Ct. D. Alaska, The Forms Individuals and Married Couples Need to File Bankruptcy
COB official material — Guide for Debtors Filing Bankruptcy Without an Attorney
Bankruptcy Administrator for the Eastern District of North Carolina, Chapter 13
28 U.S.C. § 1930(a)(1)(A), (f)(1) · official source
28 U.S.C. § 1930(a)(1)(B) · official source
Bankruptcy Court Miscellaneous Fee Schedule, Item 8
Bankruptcy Court Miscellaneous Fee Schedule, Item 9

By Antonio G. Jimenez, Esq. · Florida Bar No. 21022

Sources verified August 2, 2026 · How we verify

Every figure on this page is drawn from a primary legal source and checked against our canonical legal database before publication. Bankruptcy.law is not a law firm and does not provide legal advice.

Turn this into a plan for your exact situation, state, and court.

See My Debt Relief Options→