PETER J. McNIFF, Bankruptcy Judge.
This case is before the court on the objections filed by the chapter 7 trustee, Gary A. Barney, and by creditors, Dale Torrans, James Smith, and Ted Pound to exemptions claimed by the debtor, John David Richter. Following a preliminary hearing at which the debtor was represented by Frank Hess and the creditors by Paul Hunter, and the trustee appeared pro se, the court set an evidentiary hearing. Subsequently, the parties submitted the issues to the court on the record and agreed an evidentiary hearing was not necessary.
The issues raised are not novel, and the debtor is aware of previous rulings from this court and the United States District Court. Nevertheless, he claims personal property, owned by him and his spouse, Sammie Richter, is held as tenants by the entirety and is, therefore, exempt from the estate. The property consists of a 1998 Dodge pickup, a 1986 Bayliner boat and a boat trailer. The 1988 Dodge pickup is titled in the names of "Richter, John and Sammie." The certificate of title to the trailer lists the owners as "Richter, John D. and Sammie J." The boat is untitled.
Mr. Richter also claims an exemption in the cash surrender value of four whole life insurance policies issued by The Guardian. Mr. Richter is the owner of the policies. The primary beneficiary of the policies is Sammie Richter.
The debtor is also the owner of two Individual Retirement Accounts (IRA), one of which is invested at The Guardian. He contends the insurance policies were issued as part of retirement planning through The Guardian. The premiums on the insurance are paid from the IRA.
Tenancy by the Entirety
The debtor claims the pickup, the boat and the trailer exempt under 11 U.S.C. § 522(b)(2)(B) and Wyoming common law which exempts from execution, property held in a tenancy by the entirety. The law in Wyoming concerning creation of a tenancy by the entirety is well established and precludes the exemptions.
Under Wyoming law, a joint tenancy is not presumed. Oatts v. Jorgenson, 821 P.2d 108, 114 (Wyo. 1991). In addition to the unities of time, interest, title, possession and person, clear evidence of an intention to hold property as entireties property is required to establish a tenancy by the entirety. Choman v. Epperley, 592 P.2d 714, 715 (Wyo. 1979).
Title held as "A and B" does not create a joint tenancy without more, such as the language "husband and wife" or "tenancy by the entirety," in the instrument of title. The
expression of intention must be stated on the certificate of title or other instrument of ownership, precluding a joint tenancy in untitled property. In re Anselmi,
52 B.R. 479, 491 (Bankr.D.Wyo. 1985).
Under the principles of Wyoming law stated, the pickup and the trailer are not owned in a tenancy by the entirety. There is no evidence on the instruments of title that the Richters agreed to hold the property in any form other than as tenants in common. Furthermore, on the basis of the Anselmi case, the untitled boat cannot be owned in a tenancy by the entirety. The objections will be sustained.
Insurance Cash Surrender Value
As with the entireties exemptions, the issues raised here are not new to the court. Moreover, the debtor is familiar with previous rulings of this court which address the issues raised. Nevertheless, the court will address each in turn.
Mr. Richter claims the cash surrender value of the policies is exempt pursuant to either Wyo. Stat. Ann. § 1-20-110 or § 26-15-129 (Lexis 2001). He contends the insurance policies are annuities, exempt under § 1-20-110 which provides for an exemption in:
[a]ny retirement or annuity fund of any person, to the extent of payments made to the fund while solvent, but not exceeding the amount actually excluded or deducted as retirement funding for federal income tax purposes, and the appreciation thereon, the income therefrom and the benefits or annuity payable thereunder.
The facts in evidence do not support the debtor's argument. The insurance policies themselves do not fit within the definition of an annuity. An annuity is defined by Wyo. Stat. Ann. § 26-1-101(a)(iv) as "a contract under which obligations are assumed with respect to periodic payments where the making or continuance of all or some of the payments, or the amount of the payments, is dependent upon the continuance of human life[.]" Distribution under a whole life insurance contract is dependent upon the non-continuance of human life.
The debtor also contends the insurance policies were purchased in connection with retirement planning and the IRA invested at The Guardian. Mr. Richter's subjective intent to purchase insurance as part of a retirement plan is insufficient to satisfy the provisions of § 1-20-110.
Mr. Richter also contends the policies qualify as retirement accounts under § 1-20-110, because the insurance policy premiums are paid from the IRA funds pursuant to 26 U.S.C. § 72(t). To qualify for the retirement account exemption, the contributions to a retirement fund can not exceed the amount excluded from income for federal income tax purposes. Quite the opposite, the Internal Revenue Code, under 26 U.S.C. § 72(t)(2)(A)(iv), protects distributions from retirement funds from the imposition of a tax penalty.
Finally, there is no evidence to suggest the policies satisfy the tax deferment elements of the statute. The exemption under Wyo. Stat. Ann. § 1-20-110 must be denied.
Nor are the policies exempt under Wyo. Stat. Ann. § 26-15-129 (Lexis 1999). The validity of an exemption is determined as of the date of the filing of the petition. In re Pancratz, 175 B.R. 85, 91 (D.Wyo. 1994); 11 U.S.C. § 522(b)(2)(A). The version of the statute in effect when this case was filed creates an exemption in life insurance as follows:
If a policy of insurance is executed by a person on his own life or on another life, in favor of a person other than himself, . . . the lawful beneficiary or assignee thereof, other than the insured or the person executing insurance . . . are (sic) entitled to its proceeds against the creditors and representatives of the insured and of the person executing the policy[.]
The language of the statute is clear that an owner/debtor has no exemption rights in an insurance policy. Therefore, Mr. Richter is unable to avail himself of an exemption under § 26-15-129.
He also contends that his non-debtor spouse is entitled to exempt the cash surrender value. The court addressed the question in In re Roberts, No. 99-10149, slip op. (Bankr.D.Wyo. May 18, 2000), cited by the debtor here. In that case, this court ruled that cash value is not "proceeds" to which a beneficiary is entitled under the statute, and therefore, a beneficiary has no interest to exempt. See also In re Evans, (Evans v. Royal), No. 99-CV-092-J, slip op. (D.Wyo. January 11, 2000). The beneficial interest is a future right to death benefits, and those death benefits are not property of the bankruptcy estate. Moreover, because the beneficiary's interest is an expectancy only, subject to change or alteration by the
owner of the policy, Novosel v. Sun Life Assur. Co. of Canada,
49 Wyo. 422,
57 P.2d 110, 111 (1936), the beneficiary does not have a constitutionally protected property interest.
Finally, the debtor contends the language of the amendments to § 26-15-129, effective in July 2001, signal the intention of the Wyoming Legislature to provide an exemption for his beneficiary/spouse and were intended to overrule the decision in Evans. The court is not charged with deciding whether the amendment would change the result of the Evans decision because the statute was not in effect when this case was filed. And contrary to the debtor's contention, the amendment might actually signify legislative intent to expand the exemption rather than to clarify the statute.
The cash surrender value of the insurance policies is not exempt from property of the estate. The objections will be sustained.
IT IS, THEREFORE, ORDERED that the objections to the debtor's claim of exemption in the 1998 Dodge pickup, the boat and boat trailer, and four whole life insurance policies are sustained.