23-79-134. Exemption of proceeds — Annuity contracts — Assignability of rights.

23-79-134. Exemption of proceeds — Annuity contracts — Assignability of rights. (a) Benefits, rights, privileges, and options under any annuity or variable annuity contract, which are due or prospectively due the annuitant, shall not be subject to execution, attachment, or garnishment, nor shall the annuitant be compelled to exercise the rights, powers, or options under the contract, nor shall creditors be allowed to interfere with or terminate the contract except: (1) As to amounts paid for any annuity or variable annuity with intent to defraud creditors, including interest thereon, and of which the creditor has given the insurer written notice at its home office prior to the making of payments to the annuitant out of which the creditor seeks to recover. The notice shall specify the amount claimed, or such facts as will enable the insurer to ascertain the amount, and shall set forth such facts as will enable the insurer to ascertain the insurance or annuity contract, the person insured or annuitant, and the payments sought to be avoided on the ground of fraud; and (2) If the total benefits presently due and payable to any annuitant under all annuity contracts under which he or she is an annuitant shall at any time exceed the exemptions granted an annuitant by law, a court of appropriate jurisdiction may order the annuitant to pay to a judgment creditor or apply on the judgment, in installments, such portion of the excess benefits as to the court may appear just and proper, after due regard for the reasonable requirements of the judgment debtor and his or her family, if dependent upon him or her, as well as any payments required to be made by the annuitant to other creditors under prior court orders. (b) If the contract so provides, the benefits, rights, privileges, or options accruing under the contract to a beneficiary or assignee shall not be transferable nor subject to commutation, and, if the benefits are payable periodically or at stated times, the same exemptions and exceptions contained in this section for the annuitant shall apply with respect to the beneficiary or assignee. (c) An “annuity contract” within the meaning of this section shall be any obligation to pay certain sums at stated times, during life or lives, or for a specified term or terms, issued for a valuable consideration, regardless of whether or not the sums are payable to one (1) or more persons jointly or otherwise, but does not include payments under life insurance contracts at stated times during life or lives or for a specified term or terms. (d) A “variable annuity” contract within the meaning of this section shall be any obligation to pay sums at stated times, during life or lives, or for a specified term or terms, issued for a valuable consideration, regardless of whether or not the sums are payable to one (1) or more persons jointly or otherwise, where the sums payable vary directly according to investment experience with respect to the variable annuity contract, but does not include annuity contracts or payments under life insurance contracts at stated times during life or lives, or for a specified term or terms.