This Article first examines the conflicting policies of ERISA and the Bankruptcy Code. It then explores how the various courts have attempted to reconcile these policies when faced with the issue of whether a debtor's interest in retirement plan assets should be available for distribution to creditors in bankruptcy. In analyzing the relevant case law, the Article examines cases addressing the exclusion issue (whether pension plans should be excluded from the bankruptcy estate entirely). It also evaluates cases addressing the exemption issue (whether plan assets, once included in the bankruptcy estate, can be exempted out of the estate by the debtor as part of his fresh start). Finally, the Article proposes extensive amendments to the relevant provisions of both ERISA and the Bankruptcy Code in an effort to strike a balance between the competing objectives of the two statutes and resolve the conflict that has emerged among the circuits.
Michelle M. Arnopol, Including Retirement Benefits in A Debtor's Bankruptcy Estate: A Proposal for Harmonizing ERISA and the Bankruptcy Code, 56 Mo. L. Rev. 491 (1991)