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I have a self directed IRA that has invested in income property. It generates a few thousand a month in positive cash flow which is currently being re-invested in other funds that the IRA holds.

Currently, we (my wife & I) are not taking any withdrawals from it. But while I'm 53, my wife will be turning 59.5 soon and I'm wondering if we can then start taking penalty free withdrawals from it?

Some background: The money originally came from a 401k (in my name only) which the entire amount was generated while we were married (community property?). After I left that company, I rolled it into a self-directed IRA and the property was purchased.

It is all in my name but are we entitled to withdraw from it based on her age?

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    The I in IRA stands for Individual. Your wife's age has nothing to do with your IRA as long as you are alive, and distributions from your IRA are subject to penalties unless it meets one of the exceptions. – Dilip Sarwate Nov 9 '14 at 17:49
  • Thanks for the comment. Interesting then how the courts do not seem to respect the intent of that "I" when it comes to distributing property upon dissolution of a marriage. Not that I'm in that place, I just hoped that maybe since it's legally viewed as community property, the withdrawal criteria may take communal factors (age) into account too. – Steve H Nov 9 '14 at 18:33
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    @SteveH: You're expecting consistency from the law? – keshlam Nov 9 '14 at 19:02
  • You could divorce your wife, write a transfer of the IRA into the divorce settlement, and remarry a year or so later... – Shawaron Nov 10 '14 at 3:39
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we can then start taking penalty free withdrawals from it?

There's no "we" in IRA. There's "I". That stands for "Individual". So your wife's age has no influence whatsoever on your ability to make qualified distributions from your IRA.

The reason courts order distributions from IRAs is due to the community property laws of various States or other considerations that make spouses entitled to the amounts in the IRAs. However, you're talking about family law here, not tax law. For Federal tax purposes, a distribution ordered by the court doesn't trigger penalty (but is taxable), but any other distribution has to follow the regular qualification criteria.

  • Time for a Sec 72(t) lecture. That's the alternative for OP. – JoeTaxpayer Nov 10 '14 at 1:39
  • @JoeTaxpayer thanks. I am a little familiar with the 72(t) but don't think I need it. I'll just wait til I turn 59.5 to start withdrawals. – Steve H Nov 10 '14 at 2:36

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