The Short Answer

In Florida, a 401(k) with a valid beneficiary designation typically transfers directly to the named beneficiaries and is generally not a probate asset. That means the personal representative usually does not “collect” or “distribute” the 401(k) through the probate case, but it can still create legal issues if the beneficiary designation is disputed or conflicts with a divorce-related revocation rule.

What Florida Law Says

Retirement accounts like 401(k)s are commonly treated as non-probate transfers because they pass by contract (the plan’s beneficiary designation), not by the will. Probate is still important for other assets, creditor issues, and to establish who has authority to act for the estate—but the 401(k) itself usually pays out outside the estate.

The Statute

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

This statute establishes that, in many situations, a beneficiary designation in favor of a former spouse is treated as void after divorce (subject to important exceptions, including where controlling federal law applies), and the asset passes as if the former spouse predeceased the decedent.

For additional background on how beneficiary-designated accounts interact with probate, you may find these helpful: Do 401(k) and Life Insurance Beneficiary Accounts Avoid Probate in Florida, and Can Creditors Still Reach Them? and What Assets Must Be Listed in a Florida Probate Estate Inventory?.

Why You Should Speak with an Attorney

While beneficiary-designated accounts often bypass probate, applying the rules to a real family situation can get complicated quickly. Legal outcomes often depend on:

• Strict Deadlines: If there’s a dispute (for example, allegations of undue influence or a challenge tied to a divorce), waiting too long can reduce options or make recovery harder once funds are moved.
• Burden of Proof: If someone claims the beneficiary designation is invalid (undue influence, fraud, lack of capacity), the evidence required is fact-specific and often requires litigation outside the probate administration.
• Exceptions and Federal Overlay: Florida’s divorce-revocation rule in § 732.703 has exceptions (including where controlling federal law applies), and retirement plans can raise federal preemption issues that change the analysis.

Trying to “fix” a beneficiary payout informally can backfire—especially if the personal representative pressures beneficiaries, estate creditors are involved, or there are blended-family disputes. A Florida probate attorney can evaluate whether the 401(k) is truly outside the estate, whether any challenge is viable, and what forum (probate vs. separate civil action) is appropriate.

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.