The Short Answer

In Florida, a 401(k) typically transfers by the plan’s beneficiary designation (not by the will), so the key issue is identifying who the plan lists as beneficiary and whether any legal rule changes that result. If you are not the named beneficiary, you usually cannot “claim” the 401(k) personally—but the estate’s personal representative may be able to obtain information and address disputes if the designation is unclear, outdated, or legally ineffective.

What Florida Law Says

Most retirement accounts and employee benefit plans are designed to pass at death based on a written beneficiary designation on file with the plan administrator. That means the plan administrator generally pays the account to the named beneficiary (or contingent beneficiary) rather than to the probate estate—unless there is no effective beneficiary designation, or a specific legal rule changes who can take.

The Statute

The primary law governing this issue is Fla. Stat. § 732.703.

This statute addresses how certain beneficiary designations (including those for an employee benefit plan) can be affected by divorce—generally voiding a pre-divorce designation in favor of a former spouse, subject to important exceptions and federal-law limits.

Why You Should Speak with an Attorney

While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: If a dispute turns into estate litigation or related claims, timing can matter—Florida has hard time limits in probate contexts that can bar rights if you wait too long.
• Burden of Proof: If someone challenges a beneficiary designation (for example, based on undue influence, lack of capacity, or competing paperwork), the evidence required can be substantial and fact-specific.
• Exceptions and Federal Preemption: Fla. Stat. § 732.703 itself recognizes that “controlling federal law” may override state rules. Many 401(k) plans are governed by federal law, and that can change what arguments are available and who the plan administrator is allowed to pay.

When you are unsure who the beneficiary is, the practical problem is that plan administrators often will not release details to extended family members without proper legal authority. A Florida probate attorney can help determine who has standing, obtain the right documentation through the estate (when appropriate), and evaluate whether there is a real basis to contest or clarify the beneficiary designation.

Get Connected with a Florida Attorney

Do not leave your legal outcome to chance. We can connect you with a pre-screened Probate attorney in Florida to discuss your specific facts and options.

Find a Florida Attorney Now

Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.