Beneficiary Designations Override Your Will

The Short Version

A lot of your money never touches your will. Your retirement accounts, life insurance, annuities, and any pay-on-death or transfer-on-death accounts pass directly to whoever is named on the beneficiary form, outside your will or trust entirely. If the form and the will disagree, the form wins. That is why a flawless will can still hand your savings to the wrong person, and why beneficiary designations are the #1 cause of accidental disinheritance. See what happens to your IRA or 401(k) when you die →

The Mistake That Undoes Good Plans

The danger is a stale form. A life insurance policy still naming an ex-spouse. A 401(k) naming a parent who has died. An account with no backup beneficiary. Here is the trap most people miss. Florida law does void most designations to an ex-spouse at divorce, but it does not reach 401(k)s and other employer plans. Federal law overrides Florida’s rule there and pays whoever is on the form, ex-spouse included. The state rule also has exceptions, and a company that never learned of the divorce can pay the old form before anyone objects. If you do not change the forms yourself, your ex can still collect. The plan on paper looks perfect; the forms quietly say otherwise.

What Happens to My 401(k) When I Get Divorced?

Your divorce does not take your ex-spouse off your 401(k), and that is the single most expensive misunderstanding on this page. Florida does void a designation naming a former spouse, as of the date the marriage was dissolved, where the designation was signed before the divorce, and the former spouse is then treated as though they had died first. The statute then steps aside wherever controlling federal law says otherwise, and for a 401(k) or another employer plan federal law does say otherwise. The plan administrator pays the name on the form.

So the assets split into two groups and only you can fix one of them. An individual retirement account, a life insurance policy you own privately, and a pay-on-death bank account sit under the Florida rule. An employer 401(k), a pension and most employer group life sit outside it. A reader who remembers only "Florida takes my ex off automatically" has the wrong half of the answer for the account that is usually the largest.

Two smaller wrinkles are worth knowing. The Florida rule applies to anyone who died on or after July 1, 2012, whenever the form was actually signed, so an old form is still reached. And a company that never heard about the divorce can pay the old designation before a single person objects, which turns a clean legal rule into a lawsuit to get the money back.

Primary, Contingent, and Why Backups Matter

Your primary beneficiary is first in line; your contingent (backup) takes over only if the primary cannot. Skipping the contingent is a common, costly oversight. If your only named beneficiary dies before you and there is no backup, the asset can fall into your probate estate, the very thing the designation was meant to avoid. Name both, and keep both current.

Who Should You Name?

Naming "my estate" usually forces the asset through probate and can speed up taxes, so it is rarely the right choice. Naming individuals is simple but gives no protection if a beneficiary is a minor, disabled, or struggling with money. Naming a properly drafted trust can protect the funds, though for retirement accounts it must be done carefully because of the SECURE Act’s ten-year payout rule. The right answer depends on your family, and it is worth getting right. For bank and brokerage accounts specifically, see how POD and TOD accounts work in Florida.

Frequently Asked Questions

Common Situations

The ex who inherited. A man divorced, remarried, and updated his will, but never changed the beneficiary on his employer 401(k). At his death, federal law required the plan to pay his ex-wife, the name still on the form, not his current wife. The form, not the will and not even Florida’s divorce rule, controlled.

The missing backup. A widow named only her sister on her IRA. Her sister died first, and with no contingent beneficiary the account dropped into probate, delaying and shrinking what reached her children.

The minor grandchild. A grandmother names her eight-year-old grandson as the beneficiary of her life insurance, picturing a simple gift. But an insurer cannot hand a large check to a child, and beyond a modest amount Florida requires a court-appointed guardian to hold a minor’s money, with court oversight until he becomes an adult. The family ends up in guardianship court over the very designation that was supposed to keep things simple. Naming a trust for the grandson, or an adult custodian under Florida’s transfers-to-minors law, delivers the same gift without the courtroom.

A beneficiary who does not want what they were left has a narrow window to refuse it. See how disclaiming an inheritance works and the 9-month deadline.

Sources of Law

• Beneficiary designations, POD/TOD accounts, and life insurance/retirement proceeds pass outside the will or trust. Fla. Stat. §732.507 (divorce voids will provisions for a former spouse); §736.1105 (annotated) (trusts); §732.703 (divorce also voids most non-ERISA beneficiary designations to a former spouse, with exceptions and payor protections). ERISA preemption: Egelhoff v. Egelhoff, 532 U.S. 141 (2001); Kennedy v. Plan Administrator for DuPont, 555 U.S. 285 (2009). Retirement payout: SECURE Act 10-year rule. (retrieved 2026-06-10)
• Effect of divorce on a designation: Fla. Stat. §732.703(2) (a designation to a former spouse "is void as of the time the decedent's marriage was judicially dissolved", where the designation was made before the dissolution, and the interest passes as if the former spouse predeceased); §732.703(4)(a) (the section does not apply "[t]o the extent that controlling federal law provides otherwise", which is why employer plans are not reached); §732.703(4)(b) to (j) (further exceptions, including a later instrument expressly benefiting the former spouse, a court order requiring the asset be maintained, an irrevocable designation, another state's governing law, co-owned assets passing to a survivor, remarriage to the same person, and chapter 121 state plans); §732.703(9) ("This section applies to all designations made by or on behalf of decedents dying on or after July 1, 2012, regardless of when the designation was made").
• Cooper v. Muccitelli, 682 So. 2d 77, 78-79 (Fla. 1996), read in full. Two policies named the wife, the dissolution settlement released all claims but never mentioned the policies, one policy was changed a month before death and the other left alone, and the proceeds of roughly $100,000 went to the former spouse. "To determine whom Thomas intended as beneficiary, we need look no further than the plain language of the policy itself." Footnote 1 records the counterfactual, that "a settlement agreement that specifically requires one of the parties to maintain a named individual as beneficiary will control the disposition of proceeds upon notice to the insurer", citing Cantrell v. Home Life Ins. Co., 524 So. 2d 1063 (Fla. 5th DCA 1988). Decided before §732.703 was enacted. (Opinion read 2026-09-08; statute retrieved 2026-09-08.)

What I Have Learned About These Forms

In 14 years of law practice, the mistake I see on these forms is rarely ignorance that the form exists. Somebody updates one account and stops.

A Florida case from 1996 shows what that costs, and I keep it in mind whenever a client tells me the paperwork is handled. A man bought two life insurance policies during his marriage and named his wife the primary beneficiary of both, with his sister as the backup on one of them. The couple divorced in July 1992. Their settlement released every claim each of them had against the other and said nothing at all about the policies. His former wife remarried the following month and moved to Germany.

In December he sat down with his paperwork and changed the beneficiary on one of the two policies, naming his stepdaughter, his two children from an earlier marriage, and his parents. He left the other policy exactly as it was. He died the next month. His sister and his former wife both claimed the money, and the Florida Supreme Court gave the roughly $100,000 to the former wife in Germany, holding that it need look no further than the plain language of the policy to know whom he had named.

The detail I find useful is that he was not confused about how any of this worked. He proved he knew how to change a beneficiary, because he had just done it on the other policy, weeks earlier. He simply did not finish. A court reading two forms afterward cannot give effect to the half of the job he intended and did not do.

The question I get most about this is, "Doesn't my divorce take my ex off automatically?" For some accounts Florida now says yes, and the answer above explains which ones. For a 401(k) the answer is still no.

Practice pointer. When a divorce is what prompted the review, the settlement agreement is where I want the policy named. The same court noted, in a footnote, that an agreement specifically requiring one party to keep a named person as beneficiary does control, once the insurer is told. A general release of all claims does not do it, which is exactly what that settlement had. Naming the policy and the person, and then sending the insurer the change, is the difference between an intention and a result.

Avoid reviewing accounts one at a time as they come to mind. The failure mode is a partial pass, where the accounts a person happens to think of get fixed and the forgotten one carries an ex-spouse or a dead parent for another decade. I ask for a list of every account first, then work down it, because the account nobody mentions is the one that generates the lawsuit.

An honest limit belongs here. That case was decided before Florida enacted the statute that now voids a former spouse's designation, so a private life policy on those facts would probably come out differently today. What has not changed is the carve-out for accounts governed by federal law, and what has never changed is that a form nobody updated speaks for itself. I would rather spend twenty minutes reading your forms than argue afterward about what you meant.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on September 8, 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 law, not legal or tax advice, and no attorney-client relationship is created. Coordinating designations depends on your facts. Do not send confidential information until we have agreed to represent you.