MEMORANDUM OPINION
Carlota Bohm, the Chapter 7 Trustee for the bankruptcy estate of Kimberly Ra-
STATEMENT OF FACTS
The Debtor filed for divorce and requested equitable distribution of marital assets owned by herself and her estranged spouse on November 28, 2006. The Debt- or commenced the instant bankruptcy case on September 16, 2008. The state court wherein the divorce action was commenced has not yet either granted a divorce nor resolved the Debtor’s request for equitable distribution — in other words, the issues of divorce and equitable distribution remain pending as of the present time.
Marital assets of the Debtor and her estranged spouse include the Debtor’s estranged spouse’s 401(k) plan rollover from his former employment with Westfalia Surge, which fund now appears to be invested in an individual retirement account with Edward D. Jones & Co. that the Court shall presume is exempt from taxation under section 408 of the Internal Revenue Code (hereafter “the Estranged Spouse’s Retirement Plan”). The Trustee and the Debtor have stipulated that the entire value of the Estranged Spouse’s Retirement Plan is approximately $130,000, although the Court is uncertain as of what date such value is attributed to such retirement plan. The Estranged Spouse’s Retirement Plan is presently owned solely by the Debtor’s estranged spouse, notwithstanding that such retirement plan constitutes a marital asset.
DISCUSSION
I. Whether the Debtor’s marital right to the Estranged Spouse’s Retirement Plan constitutes property of the Debtor’s bankruptcy estate pursuant to 11 U.S.C. § 541(a)(1), and whether anything derived from such marital right also constitutes bankruptcy estate property?
The Debtor and the Trustee have stipulated that the sole issue that remains for resolution by this Court regarding the Debtor’s marital (i.e., equitable distribution) right to the Estranged Spouse’s Retirement Plan is whether such right may be exempted by the Debtor. One can infer from such stipulation that the Debtor thus agrees that such marital right constitutes property of her bankruptcy estate. Such an inference, that is that the Debtor agrees that such marital right constitutes property of her bankruptcy estate, is also consistent with the fact that the Debtor has listed such marital right as her proper
The Debtor argues as she does because (a) she contends, as a matter of law, that, if a debtor is still married when such debt- or’s bankruptcy petition is filed, then such debtor’s marital (i.e., equitable distribution) interest in such debtor’s estranged spouse’s separately-titled property will only become bankruptcy estate property if a divorce or property settlement occurs within 180 days of the bankruptcy petition filing date, (b) she was married when she commenced her bankruptcy case, and (c) a period of much more than 180 days has passed since she commenced her bankruptcy case and, as of the present time, she has not become divorced. For the foregoing statement of law, the Debtor relies entirely on the decisions in
Kane v. Kane,
In both
Kane
and
Frederes
it was determined that (a) the debtors therein, both of whom were married at the commencement of their respective bankruptcy cases, did not own marital interests in property (i.e., equitable distribution rights) as of such case commencements precisely because they were still married, (b) such marital interests, since they did not even exist as of such case commencements, thus could not constitute bankruptcy estate property under 11 U.S.C. § 541(a)(1),
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and (c) such marital interests could only constitute bankruptcy estate property under 11 U.S.C. § 541(a)(5)(B)
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in the event that divorces or property settlements occurred within 180 days of such case commencements.
See Kane,
However, in contrast to the law in New Jersey and in New York, in Pennsylvania a marital interest in property (i.e., a right to equitable distribution) vests immediately upon the initiation of a divorce action coupled with the request for equitable distribution of marital assets.
See In re Bennett,
Although the Debtor does not explicitly argue as much, the Court presumes that the Debtor would also contend that anything that she might ultimately derive from her marital interest in the Estranged Spouse’s Retirement Plan via equitable distribution will not constitute bankruptcy estate property because (a) such equitable distribution has not yet occurred, (b) more than 180 days have elapsed since the commencement of the instant bankruptcy case, and (c) such distribution consequently could not constitute bankruptcy estate property pursuant to 11 U.S.C. § 541(a)(5)(B). However, the Trustee argues, and the Court rules as well, that, consistent with a prior ruling of this Court in another bankruptcy case, anything that the Debtor might derive from her right to equitable distribution vis-a-vis the Estranged Spouse’s Retirement Plan will (a) constitute proceeds or product of or from property of the Debtor’s bankruptcy estate (such bankruptcy estate property being the Debtor’s marital interest in the Estranged Spouse’s Retirement Plan), and (b) thus also constitute bankruptcy estate property, pursuant to 11 U.S.C. § 541(a)(6),
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regardless of whether it is
II. Whether the Debtor may exempt her marital right to the Estranged Spouse’s Retirement Plan, or anything that is derived therefrom, pursuant to 11 U.S.C. § 522(d)(12)?
The Debtor contends that she may exempt her marital interest in the Estranged Spouse’s Retirement Plan pursuant to 11 U.S.C. § 522(d)(12). It is clear to the Court that the Debtor also argues that she may exempt any amount that is equitably distributed to her from the Estranged Spouse’s Retirement Plan pursuant to § 522(d)(12).
However, because the Debtor’s marital interest in the Estranged Spouse’s Retirement Plan will only have value if the Debt- or receives, via equitable distribution, a distribution of or from the Estranged Spouse’s Retirement Plan, an exemption of such marital interest will only become relevant if such distribution ultimately occurs. As well, an exemption of anything that the Debtor might derive from such marital interest will only become relevant in the event that the Debtor actually derives something therefrom via equitable distribution. That being the case, the Court need not rule at this time as to the propriety of such exemption(s). Indeed, to rule on the exemption issue at this stage before the Debtor has received a distribution of or from the Estranged Spouse’s Retirement Plan would frankly constitute, in the Court’s view, little more than an advisory opinion, which type of opinion, of course, is one that cannot be issued by this or any other court. Therefore, the Court shall defer ruling on the Trustee’s objection to the Debtor’s exemption of her marital interest in the Estranged Spouse’s Retirement Plan (as well as anything that might be derived therefrom), as well as the Trustee’s other exemption objections, until a final decision regarding equitable distribution is rendered in the Debtor’s presently-pending divorce action.
CONCLUSION
For all of the foregoing reasons, the Debtor’s marital interest in the Estranged Spouse’s Retirement Plan (as well as anything that might be derived therefrom) constitutes property of the Debtor’s bankruptcy estate. Furthermore, the Court
ORDER OF COURT
AND NOW, this 3rd day of December, 2009, for the reasons set forth in the accompanying Memorandum Opinion of the same date; and subsequent to notice and hearings on the matter that were held on June 9, 2009, and August 11, 2009, it is hereby ORDERED, ADJUDGED, AND DECREED that:
(a) the Debtor’s marital interest in her estranged spouse’s individual retirement account, as well as anything that might be derived therefrom, constitutes property of the Debtor’s bankruptcy estate, and
(b) the Court shall defer ruling on the Trustee’s objection to the Debtor’s exemption of such marital interest, as well as the Trustee’s other exemption objections, until a final decision regarding equitable distribution is rendered in the Debtor’s presently-pending divorce action.
Notes
. The Debtor also cites to four cases that were, in turn, cited in the
Kane
decision,
see Kane,
. 11 U.S.C. § 541(a)(1) provides, in pertinent part, that "[t]he commencement of a [bankruptcy] case ... creates an estate[, which] ... is comprised of[, among other things,] ... (1) ... all legal or equitable interests of the debt- or in property as of the commencement of the case.” 11 U.S.C.A. § 541(a)(1) (West 2009).
. 11 U.S.C. § 541(a)(5)(B) provides, in pertinent part, that:
The commencement of a [bankruptcy] case ... creates an estate[, which] ... is comprised of[, among other things,]
(5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date—
(B) as a result of a property settlement agreement with the debtor’s spouse, or of an interlocutory or final divorce decree.
11 U.S.C.A. § 541(a)(5)(B) (West 2009).
. 11 U.S.C. § 541(a)(6) provides, in pertinent part, that "[t]he commencement of a [bankruptcy] case ... creates an estate[, which] ... is comprised of[, among other things,] ... (6)[p]roceeds, product, offspring, rents, or