Can My Ex-Spouse Spend My Child’s 529 Plan Money?

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Kathryn Flynn

By Kathryn Flynn

August 1, 2023

Going through a divorce is never easy, especially when there are children involved. Some parents mistakenly believe that a 529 plan account they set up for their child is the property of the child. But, the 529 plan account owner, not the beneficiary, actually has control of the account.

Unless the divorce decree states otherwise, an ex-spouse who is the 529 plan account owner can legally take distributions for non-qualified expenses and deplete your child’s college fund. They can also change the beneficiary from your child to their stepchild.

Here are some tips on how you can protect your child’s 529 plan savings in the event of a divorce.

Which parent is the 529 plan account owner?

529 plans are considered assets of the account owner, which is often a parent. The 529 plan account owner may change the beneficiary or take a distribution at any time for any reason, whether or not it is in the best interest of the original beneficiary.

In most cases, parents appreciate this flexibility. For example, if a child decides not to go to college or there are leftover funds in the 529 plan account after they graduate, the parent can change the beneficiary to a sibling or other qualifying family member without tax consequences.

If a 529 plan is used to pay for anything other than qualified education expenses, such as tuition, fees, books, supplies and equipment, K-12 tuition or student loan repayments, it is considered a non-qualified distribution. But, only the earnings portion of a non-qualified 529 plan distribution is subject to income tax and a 10% penalty. A 529 plan account owner never pays tax or penalty on the contribution portion of the withdrawal.

Most 529 plans do not allow joint ownership, which means only one parent can be the account owner. In the event of a divorce, one parent could be left with full control over a child’s college savings. The parent who is the account owner could potentially:

  • Take a non-qualified distribution to pay for something other than the beneficiary’s education expenses, such as attorney fees, a new car, a big-screen TV, a vacation, groceries or other living expenses
  • Get remarried and change the 529 plan beneficiary to a child or stepchild with the new spouse
  • Use the 529 plans to further their own education or pay down their own student loans
  • Roll the funds into another 529 plan account with themselves as the named beneficiary

How to prevent an ex-spouse from taking your child’s 529 plan funds

Since 529 plans are typically opened for the benefit of a child, they might get overlooked when negotiating a divorce settlement. But, since 529 plan assets technically belong to one of the parents, it is important to include instructions for them in the divorce decree. For example, this may include language stating:

  • How the 529 plan funds can be used by either parent
  • That the non-account owner parent must be notified before a distribution is taken
  • That the 529 plan beneficiary cannot be changed without approval from both parents
  • That 529 plan statements must be provided to both parents
  • How future contributions should be handled
  • What to do with any leftover 529 plan funds after the child finishes college
  • What to do if the child decides not to go to college
  • Whether the 529 plan funds count toward a parent’s college support obligations

Financial aid considerations in divorce

The parent who provides greater financial support to the student must complete the Free Application for Federal Student Aid (FAFSA), regardless of whether or not this is the custodial parent. The custodial parent is generally the parent with whom the child primarily lives. Note that prior to the 2024-2025 FAFSA the custodial parent was responsible for filling in the FAFSA, but this rule has been changed as part of FAFSA simplification.

A 529 plan that is owned by the parent filing the FAFSA is considered a parental asset on the FAFSA and distributions are ignored. Parent assets can reduce financial aid eligibility by a maximum of 5.64% of their value.

If a 529 plan is owned by the non-FAFSA filing parent, the assets are not reported and distributions from this 529 plan are also not reported as income under the new FAFSA rules.

A good place to start:

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