Memorandum of Decision Re: 401K Plan

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re ELIZABETH SAXON,                                                                                       No. 97-10161              Debtor. ___________________________/
Memorandum of Decision
     Debtor Elizabeth Saxon is 43 years old. She is educated, intelligent, and capable. She has no dependents. While she has some chronic health problems, there is every reason to believe that she has at least twenty years of productive employment ahead of her before retirement.      On the date she filed her Chapter 7 petition, the debtor had $195,000.00 in her 401k retirement plan, which she claimed exempt. The trustee objects, arguing that the amount exceeds that which is reasonably necessary for her retirement.      This is not an all-or-nothing situation. If the trustee meets his burden of showing that all of the debtor's retirement benefits are not reasonably necessary, then the court may allocate a portion which is exempt and a portion which is to be turned over to the trustee for the benefit of creditors. In re Switzer, 146 B.R. 1 (Bkrtcy.C.D.Cal.1992).      After considering the facts of this case and the testimony of experts produced by both sides, the court is convinced that the debtor needs most, but not all, of the retirement account for her retirement. Her relative youth, education, and earning capacity are principal factors in reaching this determination; the court has considered her health problems and present limited ability to save for retirement as well. All of these factors are properly considered. In re Lingle, 119 B.R. 672 (Bkrtcy.S.D.Iowa 1990); In re Boggess, 105 B.R. 470 (Bkrtcy.S.D.Ill.1989).      The court finds that retirement savings (as of the date of bankruptcy) in the amount of $150,000.00, when considered along with Social Security benefits and expected future earnings and savings, and considering reasonable earnings and inflation rates, are reasonably necessary for the debtor's retirement; as to that amount, the objection will be overruled. The court will sustain the objection as to the balance of $45,000.00, which shall be turned over to the trustee together with interest and earnings attributable to that amount since the petition was filed.      Counsel for the trustee shall submit an appropriate form of order.
Dated: September 29, 1997                                                                                  _______________________                                                                                                                            Alan Jaroslovsky                                                                                                                            U. S. Bankruptcy