What Happens to Your Will and Beneficiaries After a Divorce in Florida?

A Florida divorce automatically voids what your former spouse would receive under your will and your revocable living trust, and it voids a pre-divorce designation of your former spouse on most life insurance, annuities, IRAs and pay-on-death accounts. Three things survive it. A 401(k) or employer life insurance pays whoever is on the form, a designation the divorce judgment requires stays in force, and a deed naming your former spouse is untouched. Anything signed after the divorce is valid as written.

1. What Happens to Your Will After a Divorce in Florida?

Every provision of your will that affects your former spouse becomes void when the court enters the divorce judgment (or declares the marriage invalid), and the will is then read as if your former spouse died on that date. A will that leaves everything to your wife and then to your children leaves everything to your children. A former spouse named as personal representative (the person who handles the estate) loses that role too, and the backup you named takes over.

Three exceptions keep a provision for a former spouse alive. You signed the will after the divorce, the will states a specific intention that the gift survive a divorce, or the divorce judgment expressly says otherwise. The current version of the rule applies to anyone who dies on or after June 29, 2021.

The timing catches people. Your spouse is still your spouse under Florida law until the judgment is entered, so a will signed years ago still pays your spouse if you die during the case, and your spouse keeps the rights Florida gives a surviving spouse, including the elective share and rights in the homestead. A new will signed during the case still matters, because it controls everything those spousal rights do not reach. Our guide to Florida wills covers signing one.

2. What Happens to a Trust After Divorce?

A revocable living trust follows the same rule as a will. Every provision that affects your former spouse is void once the marriage is dissolved, including a gift, a share held in trust for your former spouse, and a role as successor trustee, and the trust is read as if your former spouse had died at the divorce. The same three exceptions apply, namely a trust signed after the divorce, a trust that states a contrary intention, and a judgment that provides otherwise.

The rule reaches only a trust you can still revoke. An irrevocable trust, including a trust you created for your spouse to protect assets or hold life insurance, keeps doing exactly what it says, and a spousal trust that is silent about divorce can go on paying a former spouse. A family trust your parents created for you is governed by its own terms. Our page on what happens to a trust in a divorce covers whether a trust protects assets in the divorce itself, and the guide to the Florida revocable living trust covers amending or restating one.

3. What Happens to Life Insurance and Beneficiary Forms After Divorce?

Florida voids a designation of your former spouse on six kinds of assets, as long as you were a Florida resident when you died and you made the designation before the divorce. Your interest then passes as if your former spouse had died before you, so the backup beneficiary on the form takes it.

1. Life insurance, annuities and similar contracts you own outside an employer plan.
2. Life insurance, annuities and similar contracts held inside an employee benefit plan, unless federal law controls (section 4).
3. Employee benefit plans, with the same federal law limit.
4. Traditional and Roth IRAs, including individual retirement annuities.
5. Pay-on-death bank accounts.
6. Brokerage and other accounts registered in transfer-on-death form.

The exceptions are where most disputes start. The Florida rule does not apply when the divorce judgment requires you to keep the asset for your former spouse or your children (where no other asset fills that requirement), when the judgment barred you from changing the designation on your own, or when the designation is irrevocable. A designation you signed after the divorce that expressly names your former spouse stands. The rule also does not reach an account governed by another state’s law, a Florida Retirement System pension, or a joint account or property held with your former spouse with a right of survivorship, which passes to the surviving co-owner. A couple who remarry each other and are married at death keep their designations.

A bank or insurer that pays the former spouse under the old form is generally protected, and the family’s claim is then against the former spouse who received the money. Filing a new form costs nothing and avoids that lawsuit. The state-by-state beneficiary designation rules show how other states treat the same forms, and our page on Florida beneficiary designations covers naming backups.

4. What Happens to a 401(k) Beneficiary After a Divorce in Florida?

Florida’s rule steps aside wherever controlling federal law provides otherwise, and federal law controls most private employer plans, including a 401(k), a company pension and group life insurance through work. The United States Supreme Court held in 2001 that federal law preempts a state statute revoking a former spouse’s designation on those plans, and held in 2009 that a plan administrator must pay according to the plan documents, which means the name on the beneficiary form.

The plan therefore pays your former spouse if the form still names them, even when your settlement agreement says your former spouse gave up any claim to the account. Florida courts have allowed the estate to sue the former spouse afterward to recover the money when the settlement language was specific enough, which is a lawsuit your family should never need. The fix is a new beneficiary form, filed with the plan administrator and confirmed in writing, after the divorce lawyer confirms the account’s division under the judgment is complete.

Who receives the account itself in the divorce is a family law question, and the divorce lawyer handles it. Naming a trust instead of a person raises its own rules, covered on our page about naming a trust as an IRA beneficiary.

5. Does a Divorce End a Power of Attorney or Health Care Surrogate?

Both end, on different days. A spouse’s authority as your agent under a durable power of attorney ends when an action for divorce, annulment or legal separation is filed, unless the power of attorney says otherwise. If your spouse was your only agent, nobody can sign for you from that day, and a family that needs to act if you become ill has to go to guardianship court.

A designation of your spouse as your health care surrogate (the person who makes medical decisions when you cannot) is revoked when the marriage is dissolved, unless the document or the judgment says otherwise. During the case, your spouse is still the person the hospital calls.

Both documents can be replaced the week the case is filed. Our guides to the Florida durable power of attorney and the Florida health care surrogate cover choosing the new agent, and the advance directives page covers the living will that usually goes with the surrogate.

6. What Happens to the House and a Lady Bird Deed After Divorce?

A house the two of you owned as husband and wife becomes a tenancy in common when the marriage is dissolved, with each former spouse owning a share that passes through their own estate, unless the judgment awards the house to one of you. Our page on removing an ex-spouse from a deed covers the quitclaim deed, the recorded judgment and the mortgage.

A deed is not on Florida’s list of documents a divorce cancels. A lady bird deed that names your former spouse to receive the house at your death is not voided by the divorce rules for wills, trusts or beneficiary forms, so treat it as still in force until you record a new deed. The same goes for any recorded deed that gives your former spouse a future interest.

Once the house is yours alone, a new lady bird deed names your children or anyone else to receive it at your death, keeps it out of probate, and lets you sell or mortgage it without anyone’s signature. If you have a minor child, Florida’s homestead rules limit who can receive the home, and the deed has to be drafted around them.

7. What Should You Update After a Divorce, and When?

The dates come from the law, and the order matters because each document changes on a different day. Before changing any beneficiary or insurance during the case, ask your divorce lawyer whether an order in your case restricts it.

1. The week the divorce is filed. Sign a new durable power of attorney and a new health care surrogate designation and living will, and sign a new will (or amend your revocable trust) so your estate plan does not depend on the divorce finishing.
2. The day the judgment is entered. Your former spouse’s gifts and appointments in your will and revocable trust, the pre-divorce beneficiary designations Florida covers, and the surrogate designation all become void. Get a certified copy of the judgment.
3. Within 30 days after the judgment. File a new beneficiary form on every life insurance policy, annuity, IRA, 401(k), pension, pay-on-death account and transfer-on-death account, starting with the employer plans, which federal law does not let Florida fix. Record the deed or judgment that takes your former spouse off the house, and record a new lady bird deed if the house is now yours.
4. By March 1 of the next year. Confirm the homestead exemption is in your name with the county property appraiser.

Keep a list of every form you filed and the date the company confirmed it, so your executor never has to guess.

What Does It Cost to Update an Estate Plan After a Divorce?

A simple will is a flat fee from $299. The Secure Will Estate Plan, which includes the will, the durable power of attorney, the health care surrogate designation, the living will, the HIPAA authorization, a review of your beneficiary designations and a lady bird deed on your home, is a flat fee from $1,200. A power of attorney on its own is a flat fee from $350, and the health care documents are a flat fee from $350 per person. Restating an existing trust is a flat fee quoted at consult. Recording costs are passed through at cost.

Frequently Asked Questions

Common Situations

The policy from the first job. A man in Tampa divorces in 2023 and updates his will and his personal life insurance. His employer’s group life policy still names his former wife, and federal law, not Florida’s rule, decides who the plan pays. A new form filed with human resources would have sent the money to his children.

The agent who could no longer sign. A woman in Sarasota files for divorce in March and has a stroke in May. Her husband was the only agent under her power of attorney, and his authority ended when the case was filed. Her sister has to petition for guardianship, which a new power of attorney signed in March would have avoided.

Sources of Law

• Fla. Stat. §732.507(2) (will provisions affecting the testator’s spouse void upon dissolution; will construed as if the spouse died at dissolution), (2)(a) (dissolution occurs when the marriage is judicially dissolved or declared invalid), (2)(b) (exceptions for a will executed after dissolution, a contrary intention stated in the will, or a judgment that expressly provides otherwise), (3) (applies to decedents dying on or after June 29, 2021). Retrieved 2026-10-02.
• Fla. Stat. §736.1105 (annotated)(2) and (3) (the same rule for revocable trusts).
• Fla. Stat. §732.703(2) (pre-dissolution designation of a former spouse void; asset passes as if the former spouse predeceased), (3)(a) to (f) (covered assets), (4)(a) (controlling federal law), (4)(b) (instrument signed after dissolution expressly naming the former spouse), (4)(c) (will or trust governed by §732.507(2) or §736.1105), (4)(d) and (e) (designations required by, or not unilaterally changeable under, the judgment), (4)(f) (irrevocable designation), (4)(g) (other state’s law), (4)(h) (survivorship co-ownership), (4)(i) (remarriage to the same person), (4)(j) (state retirement plans under ch. 121), (6) and (8) (payor protection; ownership as between the former spouse and the person entitled is unaffected), (9) (decedents dying on or after July 1, 2012).
• Egelhoff v. Egelhoff, 532 U.S. 141 (2001) (ERISA preempts a state statute revoking a former spouse’s beneficiary designation upon divorce as applied to ERISA plans); Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 300 (2009) (plan administrator must act in accordance with the plan documents); 29 U.S.C. §1104(a)(1)(D).
• Fla. Stat. §709.2109(2)(b) (agent’s authority terminates when an action is filed for dissolution, annulment or legal separation of the agent’s marriage to the principal, unless the power of attorney otherwise provides).
• Fla. Stat. §765.104(2) (dissolution or annulment revokes the designation of a former spouse as surrogate, unless the advance directive or the order provides otherwise).
• Fla. Stat. §689.15 (tenants by the entirety become tenants in common upon dissolution of marriage).
• Case retold below, Martinez-Olson v. Estate of Olson, No. 3D20-1301 (Fla. 3d DCA Sept. 1, 2021), read in full; retrieved 2026-10-02.
• Advertised fees are honored for 90 days from the posted date. Government costs, meaning recording, documentary stamps and certified copies, are additional and passed through at cost.

The 401(k) Form Nobody Changed After the Divorce

I see cases where the divorce was handled carefully and the paperwork afterward was not.

In one case I have reviewed, a television producer in Miami married in 1998 and named his wife as the first beneficiary of his 401(k), with his children as the backups. The producer had two children from an earlier marriage and two with her. The couple divorced in 2017, and the settlement agreement (drafted by her own lawyer) said each of them kept their own retirement plans, including the proceeds, and gave up any claim to the other’s. The producer died two years later without ever filing a new beneficiary form. The plan paid the whole account to his former wife, because federal law required it to pay the name on the form.

His daughter, as personal representative of his estate, went to court to get the money back. A magistrate ruled against the estate, because the agreement never used the words death benefits. The trial judge disagreed and ordered the former wife to turn the money over within ten days, and in September 2021 the Third District Court of Appeal affirmed, holding that the word proceeds was specific enough and that the estate could sue her once the plan had paid.

In reviewing that opinion and the Florida cases it relies on, I have a few take-home points.

The first is the form. Florida’s automatic rule for former spouses never reached this account, and the appeals court said it did not need to decide whether it could. An owner can prevent a former spouse from receiving a 401(k) only by filing a new form with the plan. Avoid treating the divorce judgment as the change of beneficiary.

The second is the wording. The family recovered because the settlement mentioned the proceeds of the plan, and an agreement that only said who owned the account would likely have failed.

The third is the cost. A five-minute form became more than two years of litigation through an appeal. The opinion does not say how much was in the account, so I cannot tell you what the family netted after the fees.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on October 2, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida and federal law and our posted fees, not legal advice, and no attorney-client relationship is created. The firm does not handle divorce cases. Do not send confidential information until we have agreed to represent you.