Section 1035 Exchange

What Is a Section 1035 Exchange?

A 1035 exchange is a provision in the Internal Revenue Service (IRS) code allowing for a tax-free transfer of an existing annuity contract, life insurance policy, long-term care product, or endowment for another one of like kind. To qualify for a Section 1035 exchange, the contract or policy owner must also meet certain other requirements.

Both full and partial 1035 exchanges are permitted, although some rules will vary by company. Typically, 1035 exchanges between products within the same company are not reportable for tax purposes as long as the IRS criteria for the exchange are satisfied.

Section 1035 exchanges generally require that the transaction involve the same type of insurance product.

How a Section 1035 Exchange Works

The primary benefit of a section 1035 exchange is that it lets the contract or policy owner trade one product for another with no tax consequence. That way, they can exchange outdated and underperforming products for newer products with more attractive features, such as better investment options and less restrictive provisions.

Additionally, a section 1035 exchange lets policyholders preserve their original basis, even if there are no gains to be deferred. For example, Joe Sample invested a total of $100,000 (cost basis) in a non-qualified annuity and subsequently took no loans or withdrawals. But because of poor investment performance, its value dropped to $75,000. Dissatisfied, Joe decided to transfer his funds into another annuity with another company. In this scenario, the original contract's cost basis of $100,000 becomes the new contract's basis, although just $75,000 was transferred.

Despite the tax benefits, 1035 exchanges do not absolve contract owners of their obligations under the original contract. For example, insurance companies typically don't waive surrender charges for 1035 exchanges. However, if the owner exchanges one product for another within the same company, the fees may be waived.

A 1035 exchange must generally occur between products of like kind, such as life insurance for life insurance or a non-qualified annuity for a non-qualified annuity. Life insurance can be exchanged for a non-qualified annuity, but a non-qualified annuity cannot be exchanged for a life insurance policy. The 2006 Pension Protection Act (PPA) also modified IRC section 1035 to include exchanges from life insurance policies and non-qualified annuities into traditional and hybrid (life insurance or annuity) qualified long-term care (LTC) products.

The new product for which a modified endowment contract (MEC) was exchanged will also be a MEC. The 1035 exchange does not change that status.

Under a 1035 exchange, the contract or policy owner cannot take constructive receipt of the funds and then use them to buy a new policy. The money must be transferred directly. To further qualify, the annuitant or policyholder must remain the same. For example, a 1035 exchange from an annuity owned by Joe Sample cannot be exchanged into an annuity owned by Jane Sample or into a joint annuity owned by Joe and Jane Sample.

Tax treatment differs for partial exchanges in that a portion of the cost basis is allocated to the new product rather than all of it.