Disability and elimination of penalty for retirement distribution

[Cathy]

Have a MFJ client.  The husband didn't work at all in 2016 due to him being disabled.  Social Security finally approved him and paid him back pay from December of 2014 until January of 2017 when it came through.  In the interim, wife had to withdraw from her retirement accounts to make ends meet, and the 1099-R indicates 1 (premature distribution), of course.  

My question is this:  As Louisiana is a community property state where half of the income belongs to each spouse, including retirement accounts, wondering if I will get any flack if I use Form 5329 and the disability code to eliminate the penalty?  The Codes don't address the issue...just refers to the "individual".

Thanks!

 

Cathy

 

[jasdlm]

Sorry.  72(t)(2)(A)(iii).  I think it has to be the participant/employee's disability.