SECURE Act's 401(k) annuity options: Pros and cons

The Secure Act contains provisions that will impact nearly every client saving for retirement—along with many who have already begun taking withdrawals from qualified plans and IRAs.

The Secure Act provisions impacting lifetime income options in defined contribution plans have the potential to be some of the most significant. Although it is expected that most 401(k)s will not begin offering annuity lifetime income options immediately, the new rules could have a substantial impact on the way clients plan to secure their retirement income. Because more clients are likely to begin seeing an annuity option in their 401(k) in the near future, it’s important that they have a sense of how they might benefit—and what they should watch out for when making an informed choice.

Secure Act rules impacting lifetime income options

Prior to enactment of the Secure Act, 401(k) plan sponsors rarely offered an annuity-within-the-401(k) option even though they were allowed to provide clients with these lifetime income options—primarily because sponsors and employers were concerned with taking on more fiduciary responsibility than they already had. The Secure Act alleviated some of this concern by creating a fiduciary safe harbor for selecting the annuity provider.

Plan sponsors can now satisfy their fiduciary obligations in choosing the annuity provider by conducting an objective, thorough and analytical search at the outset to evaluate annuity providers. The sponsor must also evaluate the insurance carrier’s financial capability to satisfy the annuity obligations, as well engage in a cost-benefit analysis with respect to the annuity offering (the sponsor is permitted to rely upon a written representation from the insurance company demonstrating the carrier’s financial standing). Finally, to qualify under the safe harbor, the plan sponsor must draw the conclusion that the carrier is financially capable and that the contract cost is reasonable.

While this provision is expected to make it easier for plan sponsors to offer annuity options, the Secure Act also makes the annuity portable once the plan participant has chosen the lifetime income option. After December 31, 2019, the annuity can be transferred in a direct trustee-to-trustee transfer between qualified plans (or between a qualified plan and an IRA) if the lifetime income option is removed from the original plan’s investment options.

The Secure Act also gives clients more information that can allow them to evaluate how the annuity option could work for them. Effective 12 months after the Department of Labor issues guidance, defined contribution plans will be required to provide participants with lifetime income estimates. Practically, these estimates will take the form of an annual disclosure containing an estimate of the monthly income the participant could receive as annuity based upon the participant’s account balances.

Due diligence before checking the annuity box

For most clients, the biggest draw of the annuity within a 401(k) option will be obtaining the peace of mind associated with lifetime income guarantees. However, while an annuity option will likely be attractive for many clients, it remains important to fully evaluate the annuity option once it becomes more broadly available. Annuity options generally pay out a guaranteed amount each month regardless of how long the client lives—and can protect the client’s principal 401(k) balance from market downturns.

However, clients also need to evaluate the potentially higher fees that can accompany the annuity option. Clients should be advised to evaluate both the fees associated with the specific annuity options (noting that fee structures can vary) along with the potential surrender charges that will apply for clients who change their minds.

As with early 401(k) withdrawals, early annuity withdrawals can also generate a 10% tax penalty.  Interest provision can also vary—in some cases, the annuity will have a fixed “floor” interest rate (below which the client’s earnings cannot drop). On the other hand, the annuity will likely also have a “cap” above which earned interest cannot exceed even if the markets perform exceptionally well.

Approach with caution

Fewer than 10% of 401(k)s currently provide an annuity option—meaning that most clients haven’t yet had this option to consider. For the future, it’s important to remember that an annuity within a 401(k) must be approached with similar caution and questioning as standalone annuities, keeping in mind that annuity features and costs can vary dramatically and must be considered as part of an overall retirement income strategy.

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William Byrnes, Esq., LL.M., CWM, is an executive professor and associate dean of special projects at the Texas A&M University School of Law. A pioneer of online legal education, he also is the author or co-author of 20 tax books and legal treatises. Byrnes is also the co-author of Tax Facts, a reference solution that helps to answer critical tax questions and provides the latest tax developments.

Robert Bloink, Esq., LL.M., has taught at the Texas A&M University School of Law and the Thomas Jefferson School of Law; in the past decade, Bloink has initiated $2B+ in insurance & alternative asset class portfolios, and previously served as a senior attorney in the IRS Office of Chief Counsel for the Large- and Mid-Sized Business Division. Bloink is also the co-author of Tax Facts, a reference solution that helps to answer critical tax questions and provides the latest tax developments.