Beneficiary Designations on Retirement Accounts in Florida: Who Inherits Your IRA or 401(k)?

Beneficiary designations on retirement accounts in Florida control who inherits your IRA or 401(k), and your will is never consulted. Florida IRA beneficiary rules and 401(k) beneficiary rules differ sharply: federal law pays your surviving spouse the entire 401(k) unless they sign a witnessed waiver, while an IRA has no spousal protection at all.

Written by Jose M. Lorenzo, Jr., Florida Bar No. 107002 — admitted to The Florida Bar 4 October 2013 and to the U.S. District Court for the Southern District of Florida; J.D., Florida International University College of Law, 2013. Practice focused on Florida probate, trusts and estates, guardianship and estate planning. Offices in Coral Gables and Fort Lauderdale; clients throughout Florida. Last reviewed: 24 August 2026.

Most people spend hours on a will and thirty seconds on a beneficiary form. In Florida that is backwards: for most families the retirement account is the largest asset that passes at death, and it passes by contract to whoever is named on a form held by a custodian who has never heard of your estate plan. What follows is what the law actually does with that form — the spousal consent rule that surprises nearly everyone, what the SECURE Act did to your children’s payout window, when a trust helps and when it quietly makes things worse, and the two Florida statutes that make this one of the best states in the country to leave a retirement account behind.

Does my will control my IRA or 401(k) in Florida?

No. In Florida a retirement account passes by contract, not by will. The custodian pays whoever is named on the beneficiary form and never reads your will. Your will reaches only probate assets — property held in your individual name at death with no surviving beneficiary designation on it.

A retirement account with a living, named beneficiary has already been disposed of by contract. It never enters probate, so the will that governs your probate estate under Fla. Stat. § 732.101 never reaches it. The Florida Supreme Court settled the point in Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011): where a marital settlement agreement contains only general language about who owns what, courts look no further than the beneficiary named in the plan’s own document. General intent loses to the form.

Two consequences follow, and both cause litigation:

• A new will, a new trust, or a divorce judgment does not update your beneficiary forms. Only a new form filed with the custodian does.
• If the form and the will disagree, the form wins — and the person your will named has to sue to change that, usually on grounds of capacity, undue influence, or forgery.

For the broader question of what beneficiary designations override and what they cannot touch — homestead, vehicles, the elective share — see our companion guide to beneficiary designations in Florida estate planning, and our overview of Florida non-probate assets.

Does my spouse have to be the beneficiary of my 401(k)?

In almost every case, yes. Federal law requires an ERISA-governed 401(k) to pay your surviving spouse the entire account unless your spouse signs a written consent to someone else, witnessed by a plan representative or a notary public. An IRA holding the identical money carries no such requirement.

This is the single most misunderstood rule in this area, and it is the reason a beneficiary form that looks perfectly valid gets rejected after death.

Under 29 U.S.C. § 1055 and IRC § 417, a qualified plan must pay benefits in the form of a qualified joint and survivor annuity unless the participant elects otherwise with spousal consent. Most 401(k) plans escape the annuity requirement through the exception at 29 U.S.C. § 1055(b)(1)(C) and IRC § 401(a)(11)(B)(iii) — but they qualify for that exception only if the plan pays the participant’s entire nonforfeitable account balance to the surviving spouse on death. The escape hatch is conditioned on the spouse getting everything.

So the practical rule is the same either way: your spouse receives your 401(k) unless your spouse agrees in writing that they will not. The Seventh Circuit confirmed in Butler v. Encyclopedia Brittanica, Inc., 41 F.3d 285 (7th Cir. 1994) that a plan relying on the exception is still bound by the consent rules, and the Supreme Court stated the principle in Boggs v. Boggs, 520 U.S. 833 (1997): a participant cannot defeat a surviving spouse’s statutory entitlement on his own.

What makes a spousal waiver valid?

29 U.S.C. § 1055(c)(2) and IRC § 417(a)(2) set four requirements, and plans enforce them literally:

1. The consent is in writing.
2. It designates a specific beneficiary (or a form of benefit) that cannot be changed later without another consent — unless the spouse expressly permits future changes.
3. It acknowledges the effect of what is being given up.
4. It is witnessed by a plan representative or a notary public. Under Treas. Reg. § 1.401(a)-21(d)(6), the spouse must physically appear before that witness; a signature mailed to a notary afterward is not consent.

One more trap: consent runs to the person who signed it. A waiver signed by your first wife does nothing about your second. Remarry, and every waiver in the file resets to zero.

Does a prenuptial agreement waive my spouse’s 401(k) rights?

Generally, no — and this is where careful planning most often fails. ERISA’s consent right belongs to a spouse. A person signing a premarital agreement is, by definition, not yet a spouse and cannot waive a right they do not yet hold. Treas. Reg. § 1.401(a)-20, Q&A-28 provides that an agreement entered into before marriage does not satisfy the consent requirements, and the federal courts of appeals have applied it uniformly — Hurwitz v. Sher, 982 F.2d 778 (2d Cir. 1992); Hagwood v. Newton, 282 F.3d 285 (4th Cir. 2002).

If a prenuptial agreement was meant to keep a 401(k) in the family from a first marriage, the fix is to have the new spouse sign a proper, witnessed plan consent after the wedding. Nothing signed before it will do the job.

Why an IRA is different — and what a rollover quietly does

IRAs are not ERISA plans. No federal statute and no Florida statute requires your spouse’s consent to name someone else as the beneficiary of an IRA — the Ninth Circuit held as much in Charles Schwab & Co. v. Debickero, 593 F.3d 916 (9th Cir. 2010), finding that ERISA’s surviving-spouse protections do not reach IRAs and that the designation is left to the account holder. You can change it online, tonight, alone.

That matters most at the moment people think least about it. Rolling a 401(k) into an IRA removes your spouse’s federal veto over that money. The dollars do not change; the protection does — and no Florida statute puts it back.

What if we never married?

Then the form is the only thing standing between your partner and nothing. Fla. Stat. § 741.211 voids any common-law marriage entered into in Florida after 1 January 1968, so a long-term partner has no spousal rights here at all — no elective share, no intestate share, and no automatic claim on a 401(k). The mirror image of the rule above also applies: because an unmarried partner is not a spouse, there is no consent requirement, and you can name them on a 401(k) without anyone’s signature. Name them expressly, name a contingent beneficiary behind them, and do not assume that living together for twenty years does any legal work.

What about a 403(b), a 457(b), or a Thrift Savings Plan?

The federal distribution rules in this guide — the ten-year window, the eligible designated beneficiary categories, the 2024 regulations — apply across employer plans, so a Florida teacher’s 403(b), a county employee’s 457(b) and a federal worker’s or servicemember’s TSP all run on the same clock as a 401(k). What differs is the spousal layer and the paperwork. A 403(b) is generally ERISA-covered and carries the same spousal consent requirement; a governmental 457(b) is not an ERISA plan, so the plan’s own rules control and there may be no consent requirement at all; the TSP follows its own statutory order of precedence and its own designation form, which overrides a will and is not changed by a divorce decree. If you hold one of these, ask the plan directly which regime you are in — the answer changes who inherits.

What a surviving spouse can do that no one else can

A surviving spouse who inherits either account has options no other beneficiary has. Under IRC § 402(c)(9) and IRC § 408(d)(3), a surviving spouse may roll the account into their own IRA and treat it as their own; a non-spouse beneficiary can only move it to an inherited IRA. Since the SECURE 2.0 Act of 2022, § 327 — now IRC § 401(a)(9)(B)(iv) — adds a second choice: the surviving spouse may elect to be treated as the deceased employee for distribution purposes, delaying the start of distributions until the deceased spouse would have reached the applicable age and using the more favorable Uniform Lifetime Table. Which option wins depends on the ages involved, and the election is not casually reversible.

Question	401(k) / 403(b) (ERISA)	IRA / Roth IRA	Florida Retirement System (FRS)
Spouse is beneficiary by default?	Yes — unless the spouse consents in writing, witnessed (29 U.S.C. § 1055)	No — owner names anyone, no consent needed	No — member designates under Ch. 121 rules
Does divorce erase an ex-spouse automatically?	No — ERISA preempts Florida’s statute (Egelhoff)	Yes — Fla. Stat. § 732.703(2) voids the designation	No — expressly carved out by § 732.703(4)(j)
Protected from creditors in Florida?	Yes — Fla. Stat. § 222.21(2)(a)	Yes — § 222.21(2)(a); inherited IRAs under § 222.21(2)(c)	Yes — Fla. Stat. § 121.131 (broader)
Counted in a surviving spouse’s elective share?	Yes — Fla. Stat. § 732.2035(8)	Yes — § 732.2035(8)	Yes — § 732.2035(8)
Trust documentation deadline if a trust is named	31 October of the year after death	31 October of the year after death (Treas. Reg. § 1.408-8)	Per division rules

What happens if I name no beneficiary — or name my estate?

Both are expensive mistakes. With no living beneficiary, the custodial agreement’s default terms decide, and the money usually lands in your probate estate. Naming your estate outright does two things at once: it shortens the payout window sharply, and it strips the Florida creditor exemption the account had while you were alive.

Start with the creditor point, because almost no one raises it. Fla. Stat. § 222.21(2)(a) exempts retirement money from the creditors of the owner, participant, or beneficiary — and a probate estate is none of those three. Naming your estate does not merely slow the money down; it hands your creditors a claim on it.

The “ghost rule”: why naming your estate accelerates the tax bill

An estate is not a person, so there is no designated beneficiary for federal tax purposes. That drops the account into the least favorable rules in the code:

• If you die before your required beginning date — the account must be emptied by the end of the calendar year containing the fifth anniversary of your death. Die in 2026 and it is all out by 31 December 2031.
• If you die on or after your required beginning date — distributions run over your own remaining single life expectancy, frozen at the age you died. Practitioners call this the ghost life expectancy, and for an account owner who dies in their eighties it is shorter than the ten years a named child would have had.

The result is a compressed payout, often to a probate estate taxed in the top bracket at a few thousand dollars of income, when a named individual would have had a decade and their own brackets to work with.

The same problem arrives quietly when you simply forget to name a contingent beneficiary and your primary dies first. See contingent beneficiaries under Florida estate law for how the alternate layer works.

Should I name my trust as beneficiary of my IRA in Florida?

Sometimes — but the trust must be drafted for retirement accounts specifically, and most revocable living trusts are not. A “see-through” trust preserves your beneficiaries’ payout rules. A trust that fails the test collapses the account into the five-year or ghost-life-expectancy rules, which is worse than naming nobody at all.

Naming a trust is not a mistake. Naming the wrong trust is one of the most expensive mistakes in Florida estate planning, and the client never finds out — the beneficiary does, years later. To qualify as a see-through trust under Treas. Reg. § 1.401(a)(9)-4(f)(2), four things must be true: the trust is valid under Florida law, it is irrevocable or becomes irrevocable at your death, its beneficiaries are identifiable from the instrument, and documentation reaches the plan administrator by 31 October of the year following death. Note that Treas. Reg. § 1.408-8 applies that same documentation framework to IRAs. Plenty of published commentary still says IRAs are exempt from it; under the 2024 final regulations, do not rely on that.

	Conduit trust	Accumulation trust
What it does	Every dollar the trust receives from the account must pass straight through to the beneficiary	The trustee may hold distributions inside the trust
Who counts as beneficiary	Only the current conduit beneficiary	Generally both primary and residual beneficiaries
Real-world effect	The entire account is out of the trust within ten years anyway — which defeats the reason most people wanted a trust	Control is preserved, but the least favorable beneficiary can set the payout rules for everyone
Tax	Taxed to the beneficiary at their own rates	Retained income taxed at compressed trust rates — in 2026 a trust hits the top 37% bracket at just $16,000 of retained taxable income (Rev. Proc. 2025-32)
Creditor and spendthrift protection	Weak — the money leaves the trust	Strong — the money stays in
Best for	A responsible adult beneficiary where control matters less than simplicity	A beneficiary with creditor exposure, a shaky marriage, addiction, or a disability

The trap: a charity inside the trust can break it

If a charity or other non-individual is a countable beneficiary of the trust and is not otherwise disregarded, the trust has no identifiable individual beneficiary — so it is not a see-through trust, and the whole account falls to the five-year or ghost rules. A remainder gift to a church written into a family trust twenty years ago can do this without anyone noticing.

When a trust is still clearly the right answer

A beneficiary who is disabled or chronically ill is an eligible designated beneficiary, and an applicable multi-beneficiary trust under IRC § 401(a)(9)(H)(iv) and Treas. Reg. § 1.401(a)(9)-4(g) can preserve life-expectancy payout for them even where other beneficiaries exist. Two structures qualify: a trust that divides immediately at your death into separate trusts, or a trust under which no one else has any right to the account until the disabled or chronically ill beneficiary has died. Documentation of the disability or chronic illness is due by 31 October of the year following death. This is the fact pattern where a trust earns its cost several times over — and where naming the child directly can also destroy needs-based benefits.

One structural warning for families with several children: under Treas. Reg. § 1.401(a)(9)-8, the separate-accounts rule generally cannot be applied to the individual beneficiaries of a single see-through trust. Naming one trust for four children usually means one distribution schedule for all four, set by the least favorable of them — unless the trust divides into separate trusts immediately at your death. That belongs in the drafting instructions, not in a footnote someone finds later.

If this is your situation, the retirement account and the trust have to be designed together. See Florida special needs trusts, third-party special needs trusts, and funding and managing a special needs trust.

How long do my children have to empty an inherited IRA? The 10-year rule

Ten years, for most adult children. The SECURE Act of 2019 — not SECURE 2.0 — replaced the lifetime “stretch IRA” with a ten-year drain for most non-spouse beneficiaries. A narrow group called eligible designated beneficiaries still gets life-expectancy payout. Since 2025, many ten-year beneficiaries must also take annual distributions along the way.

Get the name right, because a great deal of published content does not. The ten-year rule was created by the SECURE Act of 2019, Pub. L. 116-94, which added IRC § 401(a)(9)(H), and it reaches account owners who died after 31 December 2019. The SECURE 2.0 Act of 2022 changed required beginning ages, catch-up contributions and Roth rules — it did not create the ten-year window.

Who is an “eligible designated beneficiary”?

Category	Payout	Watch for
Surviving spouse	Life expectancy, or roll into their own IRA	The rollover is usually better, and it restarts the clock
Minor child of the account owner	Life expectancy until age 21, then the 10-year clock starts	A grandchild is not an EDB. Neither is a niece, nephew, or stepchild not legally adopted
Disabled (IRC § 72(m)(7))	Life expectancy	Needs-based benefits are at risk without a trust
Chronically ill (IRC § 7702B(c)(2))	Life expectancy	Certification requirements apply
Not more than 10 years younger than the owner	Life expectancy	Usually a sibling, a partner, or a close-in-age friend

The 2024 final regulations: annual distributions in years 1 through 9

The Treasury regulations finalized in July 2024 (T.D. 10001) resolved a question that had been open since 2020, and they resolved it against taxpayers. Where the account owner died on or after the required beginning date, a ten-year beneficiary must take annual required minimum distributions in years one through nine and empty the account by 31 December of the tenth year. Where the owner died before the required beginning date, there are no annual distributions — only the year-ten deadline.

The IRS waived the missed annual distributions for 2021 through 2024 in Notice 2024-35. That relief is over. The annual requirement applies to distribution calendar years beginning on or after 1 January 2025 — it is live now, and beneficiaries who assumed they could wait until year ten are already behind.

Roth accounts follow a different clock

A Roth IRA owner takes no required distributions during life, so under Treas. Reg. § 1.408A-6 a Roth owner is always treated as having died before the required beginning date. Roth beneficiaries therefore get the full ten years with no annual distributions in between, and qualified distributions are income-tax free. Since 2024, designated Roth accounts inside a 401(k) also carry no lifetime required distributions. For a Florida family deciding which account to leave to which beneficiary, that difference is often worth more than the balance itself.

I got divorced — is my ex-spouse still my beneficiary?

It depends entirely on which account you are asking about. Florida law automatically erases a former spouse from your IRA. Florida law cannot touch your 401(k), because ERISA preempts it — your ex still collects. And the Florida Retirement System is expressly carved out of the Florida statute, so an ex-spouse stays on an FRS designation too.

Fla. Stat. § 732.703(2) voids a beneficiary designation naming a former spouse as of the moment the marriage was dissolved, and the interest passes as if the former spouse had died first. It reaches IRAs under IRC §§ 408 and 408A, employee benefit plans, payable-on-death accounts and transfer-on-death securities, for decedents dying on or after 1 July 2012.

Then § 732.703(4) takes most of it back. The subsection carries ten exceptions, and two of them matter to nearly everyone reading this:

• § 732.703(4)(a) — controlling federal law. ERISA preempts state revocation-on-divorce statutes as applied to qualified plans. In Egelhoff v. Egelhoff, 532 U.S. 141 (2001) the Supreme Court struck down Washington’s version of this statute for exactly that reason, and in Kennedy v. Plan Administrator for DuPont, 555 U.S. 285 (2009) it held that the administrator must pay whoever the plan document names, even where the ex-spouse had signed a waiver in the divorce decree that was not a qualified domestic relations order.
• § 732.703(4)(j) — state-administered retirement plans under Chapter 121. The Florida Retirement System is exempt from the automatic revocation entirely.

Reduced to a sentence a divorced Floridian can act on: divorce erases your ex from your IRA by itself. It does not erase them from your 401(k), and it does not erase them from FRS. Two of the three require you to file a new form.

And do not assume the divorce paperwork handled it. Under Crawford v. Barker, general language in a settlement agreement does not override the designation on file. In Suess v. Suess, 289 So. 3d 525 (Fla. 2d DCA 2020), a former spouse remained the FRS death beneficiary because the settlement agreement said she would.

Are my retirement accounts protected from creditors in Florida?

Yes, and unusually well. Fla. Stat. § 222.21(2)(a) exempts IRAs and qualified plans from the claims of creditors of the owner, participant and beneficiary. Section 222.21(2)(c) keeps the exemption alive after death in an inherited IRA — protection the federal bankruptcy exemption does not provide.

This is the strongest Florida-specific fact on this page, and it is the one competitors leave out.

In Clark v. Rameker, 573 U.S. 122 (2014), the Supreme Court held that an inherited IRA is not “retirement funds” for purposes of the federal bankruptcy exemption. Florida had already decided otherwise by statute. Fla. Stat. § 222.21(2)(c) provides that exempt funds do not lose that status after the owner’s death by reason of a direct transfer or eligible rollover excluded from gross income — expressly including a transfer into an inherited IRA.

Three honest limits belong next to that:

• § 222.21(2)(d) carves out alternate payees under a qualified domestic relations order and orders determining a surviving spouse’s elective share. The exemption is not absolute.
• In re Yerian, 927 F.3d 1223 (11th Cir. 2019) — an owner who uses IRA assets for himself, in violation of the account’s governing instrument, forfeits the exemption entirely. Self-directed IRA holders should read this one twice.
• Naming your probate estate gives the protection away voluntarily, as explained above.

Florida Retirement System benefits sit under a separate and broader shield: Fla. Stat. § 121.131 exempts them from state, county and municipal tax and from assignment, execution, attachment or any legal process.

Can I name my minor child as beneficiary of my IRA?

You can, but Florida caps what a parent may collect without a court. Under Fla. Stat. § 744.301(2), a natural guardian may receive and manage benefit-plan proceeds for a minor only up to $15,000 in the aggregate. Above that figure, a court-supervised guardianship of the property is required.

Fla. Stat. § 744.301(2)(e) lets a natural guardian collect and manage benefit-plan proceeds for a minor child without appointment, authority or bond — but only while the aggregate stays at or below $15,000. A $200,000 IRA left to a fifteen-year-old means a guardianship: petition, bond, attorney, annual accountings, court oversight until eighteen, and then the whole balance handed over on their birthday. Two better answers, and the first costs nothing:

1. Name a custodian on the beneficiary form itself under the Florida Uniform Transfers to Minors Act, Fla. Stat. ch. 710: “[Name], as custodian for [Child] under the Florida Uniform Transfers to Minors Act.” No court, no bond, no lawyer required to open it.
2. Name a properly drafted trust where the amount is large, the child has a disability, or you want control past the custodianship’s end.

Keep the tax rule in view alongside the state-law rule: your own minor child is an eligible designated beneficiary until 21, and then the ten-year clock begins. A grandchild is never an EDB, so a grandchild named directly takes the full ten-year rule from day one.

Can I name a beneficiary who is not a U.S. citizen?

Yes. Nothing in the Internal Revenue Code or Florida law stops you from naming a non-citizen or a beneficiary living abroad, and the ten-year rule and eligible-designated-beneficiary categories apply to them the same way. What changes is the administration: the custodian will generally withhold U.S. tax at a flat 30% on distributions to a non-resident alien unless a tax treaty lowers the rate and a Form W-8BEN is on file, and some custodians will not open an inherited IRA for a foreign address at all. Where the account owner is the non-citizen, the estate-tax picture changes as well — see ancillary administration and non-citizen estate tax in Florida.

Leaving part of your IRA to charity without shortening your children’s payout

Leave the IRA to charity and the taxable brokerage account to your children — not the reverse. A retirement account is income in respect of a decedent, so a tax-exempt charity receives it whole while a child pays ordinary income on every dollar, now compressed into ten years.

A retirement account is income in respect of a decedent under IRC § 691. That drives the whole strategy: the charity’s rate is zero, your child’s is not, and appreciated brokerage assets get a basis step-up a retirement account never gets. Splitting one account between a charity and your children needs mechanics, and this is where well-intentioned plans go wrong:

• 30 September of the year following death is the beneficiary determination date under Treas. Reg. § 1.401(a)(9)-4. A beneficiary whose entire share is paid out before that date is disregarded. Cashing the charity out early is the clean fix — and it is the fix most articles miss.
• 31 December of the year following death is the deadline for establishing separate accounts under Treas. Reg. § 1.401(a)(9)-8. Miss it and the rules apply on an aggregate basis, with each beneficiary taking a proportionate slice.
• Cleanest of all: use a separate IRA for the charitable gift so no split is ever needed.

If a charitable gift is part of your plan, see our guide to leaving a bequest to charity in Florida.

If you work for the State of Florida: FRS beneficiary rules

Florida Retirement System benefits follow their own rules and are treated differently from every other retirement account in this guide. FRS is expressly exempt from Florida’s automatic revocation-on-divorce statute, which means a former spouse named before the divorce stays on the designation until the member files a new form.

Teachers, deputies, firefighters, county staff and state employees are the group most likely to be caught by this. Fla. Stat. § 732.703(4)(j) removes Chapter 121 plans from the revocation rule entirely. Nothing happens automatically at divorce. The designation on file with the Division of Retirement is the designation that pays.

One FRS-only deadline worth calendaring: a beneficiary who wants to disclaim an FRS interest has 24 months from the member’s death under Fla. Stat. § 121.091(8)(b) — but the federal window for a qualified disclaimer is only nine months. Use the shorter one.

FRS benefits also carry the broad exemption in Fla. Stat. § 121.131 — and are nevertheless included in a surviving spouse’s elective estate under Fla. Stat. § 732.2035(8), along with every other pension and deferred compensation arrangement. Protection from creditors and inclusion in the elective share are separate questions with different answers. See the Florida elective share and surviving spouse rights in Florida.

Someone has died. How do you actually claim an inherited IRA or 401(k)?

You claim it directly from the custodian or plan administrator — not through the probate court. A named beneficiary does not need an estate opened, letters of administration, or a lawyer to start. You need a certified death certificate and the custodian’s claim form. A clean, uncontested claim is usually paid within two to eight weeks of complete paperwork.

How do I find out whether I am even a beneficiary?

Custodians will not volunteer it. Start with the decedent’s mail and email for account statements, then contact each institution directly and state that you are a potential beneficiary of a named decedent; most will confirm whether you are on file once you provide a death certificate. For an old employer plan nobody can locate, the plan’s Form 5500 filing identifies the administrator, and the Department of Labor and the Pension Benefit Guaranty Corporation both run searchable databases for abandoned plans and unclaimed pensions. Florida’s unclaimed property division is worth a search too, because accounts that go unclaimed long enough escheat to the state.

The claim process, step by step

1. Order certified death certificates — week 1. Get more than you think you need; each institution usually wants its own certified copy, not a photocopy. Note that Florida issues death certificates both with and without cause of death, and most custodians accept the version without it.
2. Notify every custodian in writing — week 1. Ask each one to confirm the beneficiary of record, the account balance as of the date of death, and whether the decedent had reached their required beginning date. That last answer determines whether annual distributions are required during the ten-year window.
3. Take the decedent’s final required distribution — by 31 December of the year of death. If the owner had reached their required beginning date and had not yet taken that year’s distribution, the beneficiary must take it. Missing it triggers an excise tax on a shortfall that was not the beneficiary’s fault.
4. Choose your payout route before you sign anything — weeks 2 to 6. This is the step that costs people money. A non-spouse beneficiary should almost always request a direct trustee-to-trustee transfer into an inherited IRA, titled in the decedent’s name for the benefit of the beneficiary. A non-spouse beneficiary cannot do a 60-day rollover; take the check personally and the entire account becomes taxable in one year. A surviving spouse has the extra options described above.
5. Submit the claim packet — weeks 2 to 6. Claim form, certified death certificate, government ID, and a completed Form W-9. Ask in writing whether federal withholding will be applied and elect out if you are doing a direct transfer.
6. Watch the three post-death deadlines — the year after death. 30 September, 31 October and 31 December, all set out in the table below.

If more than one person is named, deal with the separate accounts question early — splitting into individual inherited IRAs by 31 December of the year following death is what lets each beneficiary use their own rules instead of a blended schedule.

Can a retirement account beneficiary designation be challenged in Florida?

Yes, but the window is short and the standard is unforgiving. Florida requires strict compliance with the custodian’s own change procedure, so a form the decedent signed but never submitted usually fails. The single most important step is written notice to the custodian before the money goes out — after payment, you are suing a person instead of an institution.

The usual grounds are lack of capacity, undue influence, forgery, fraud, and a designation changed in the weeks before death by someone who had just been given control of the decedent’s affairs. Those are ordinary Florida claims and they are litigated the same way here as in a will contest.

“He signed the form — the company just never processed it”

This is the most common version of the dispute, and Florida’s answer is harsher than most people expect. Florida is a strict compliance state. A beneficiary may be changed only by complying with the conditions the policy or account agreement sets, and proof of the decedent’s intent, standing alone, does not do it — Brown v. Di Petta, 448 So. 2d 561 (Fla. 3d DCA 1984). In McDaniel v. Liberty National Life Insurance Co., 722 So. 2d 865 (Fla. 5th DCA 1998), the change failed even with an agent’s uncontradicted testimony that the insured said she wanted her new husband named, because the form’s beneficiary line had been left blank. And under Cooper v. Muccitelli, 661 So. 2d 52 (Fla. 2d DCA 1995), the person named on the form holds only an expectancy during the owner’s life — which cuts both ways.

The federal courts applying Florida law have distilled it into a two-part test: the owner must have manifested a clear intent to change the designation and taken substantial affirmative steps to do it — American General Life Insurance Co. v. O.H.M., 576 F. Supp. 3d 1076 (M.D. Fla. 2021). There is one narrow equitable exception, from Smith v. Wilson, 440 So. 2d 442 (Fla. 1st DCA 1983), where the insured had done everything within his power and an employer’s error defeated the filing — but no other Florida court has adopted its substantial-compliance reasoning, and its continuing force is doubtful. Assume the form has to actually arrive.

On a 401(k), the analysis is federal and it is stricter still

For an ERISA plan, Kennedy v. Plan Administrator for DuPont requires the administrator to pay according to the plan documents and the last valid designation on file, and a change not made through the plan’s own procedure is disregarded. Florida’s Third District applied that here in Martinez-Olson v. Estate of Olson, 328 So. 3d 14 (Fla. 3d DCA 2021). Whether any federal substantial-compliance doctrine survives Kennedy is unsettled — the Eleventh Circuit noted the question and declined to answer it in Metropolitan Life Insurance Co. v. Waddell, 697 F. App’x 989 (11th Cir. 2017). Plan on the named beneficiary being paid.

What to do in the first week

1. Send written notice to the custodian or plan administrator before any distribution, asserting the competing claim and asking that no proceeds be released pending resolution. This is the step that preserves everything else.
2. Preserve the evidence — the partially completed form, envelopes and postmarks, emails, call logs, and the custodian’s own records of what it received and when.
3. For an ERISA plan, exhaust the internal claims and appeals procedure under 29 U.S.C. § 1133 before filing suit; skipping it can bar the case.
4. Expect an interpleader. A custodian facing competing claims can deposit the funds with the court and step out — that is exactly what happened with a decedent’s IRA in Rainess v. Estate of Machida, 81 So. 3d 504 (Fla. 4th DCA 2012). Interpleader is usually good news: the money stops moving while the claim is decided.

What if I do not want the money?

You can refuse it. A disclaimer under Florida’s Uniform Disclaimer of Property Interests Act must be in writing, declare itself a disclaimer, describe the interest, and be signed, witnessed and acknowledged the way a Florida deed is — Fla. Stat. § 739.104 — and it must be delivered to the custodian obligated to distribute the account under § 739.301(6). The interest then passes as though you had died first (§ 739.201), which is how a surviving spouse pushes an account down to the children on purpose.

Two traps. The disclaimer is irrevocable on delivery. And to be a qualified disclaimer for federal tax purposes under IRC § 2518 it must be delivered within nine months of the death and you must not have accepted the account or any benefit from it first — so do not take a single distribution while you think about it.

Key deadlines after a Florida retirement account owner dies

Four dates decide how much tax a beneficiary pays, and three of them fall in the calendar year after the death — not the year of the death. Missing them cannot be fixed later.

Deadline	What it decides	Consequence of missing it
31 December of the year of death	The owner’s own final required distribution, if they had reached their required beginning date	Excise tax on the shortfall; the beneficiary must take it
30 September, year after death	Who counts as a beneficiary. Anyone cashed out in full before this date drops out of the calculation	A charity or estate left in the mix can wreck the payout for everyone else
31 October, year after death	Trust documentation to the plan administrator or IRA custodian; also the deadline to document a beneficiary’s disability or chronic illness	Trust may fail see-through treatment; an eligible designated beneficiary may lose life-expectancy payout
31 December, year after death	Separate accounts established for multiple beneficiaries	Rules apply on an aggregate basis instead of individually
31 December of year 10	Account fully emptied under the 10-year rule	Excise tax on whatever remains

Myth vs. reality: what Floridians get wrong about retirement beneficiary designations

Myth	Reality
“My will says who gets everything, so my IRA is covered.”	Your will never reaches an account with a living named beneficiary. The custodian pays the form. Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011).
“My divorce took my ex off everything.”	Only the IRA. ERISA preempts Fla. Stat. § 732.703 as to a 401(k) (Egelhoff), and § 732.703(4)(j) exempts FRS outright.
“My prenup means my new spouse has no claim on my 401(k).”	A prenuptial agreement is signed by a fiancée, not a spouse, and generally cannot waive ERISA survivor rights. Treas. Reg. § 1.401(a)-20, Q&A-28.
“Naming my estate keeps it simple.”	It forfeits the Fla. Stat. § 222.21 creditor exemption and forces the 5-year or ghost-life-expectancy payout.
“My kids can stretch distributions over their lifetimes.”	The SECURE Act of 2019 ended that for most non-spouse beneficiaries. Ten years, plus annual distributions from 2025 where the owner died on or after their required beginning date.
“My living trust is the safest beneficiary.”	Only if it is drafted as a see-through trust. A trust that fails the test is worse than naming no one.
“Inherited IRAs lose their protection from creditors.”	Not in Florida. Fla. Stat. § 222.21(2)(c) preserves the exemption, notwithstanding Clark v. Rameker, 573 U.S. 122 (2014).
“I’ll leave the IRA to my kids and the brokerage account to charity.”	Backwards. The IRA is income in respect of a decedent under IRC § 691; the brokerage account gets a basis step-up.
“Trust paperwork deadlines apply to employer plans, not IRAs.”	Not under the 2024 final regulations. Treas. Reg. § 1.408-8 applies the same 31 October trust documentation framework to IRAs.

How to check and fix your beneficiary forms this week

This is a two-hour project, not a two-month one. Every custodian will tell you who is currently named, in writing, at no cost. The single most common finding is a form that predates a marriage, a divorce, or a death in the family.

1. Day 1 — inventory. Every 401(k) and 403(b), including plans left behind at old employers; every IRA and Roth IRA; FRS; annuities; life insurance.
2. Days 1–3 — get it in writing. Ask each custodian for the current beneficiary of record. Portals and plan records disagree more often than you would expect.
3. Days 3–5 — look for the four killers. A beneficiary who has died; a former spouse; a blank contingent line; “my estate” or “my trust” on any form. Check every account separately — people who hold three IRAs routinely find three different beneficiaries, because each one was set up in a different decade.
4. Days 5–10 — file corrections. If you are married and naming anyone other than your spouse on a 401(k), the spousal consent must be witnessed in person by a plan representative or notary.
5. Days 10–14 — confirm receipt. Written acknowledgment from every custodian. An unprocessed form is the most litigated fact pattern in this area.
6. Ongoing. Review at every marriage, divorce, birth, adoption, beneficiary death, job change and rollover — and every three years regardless.

When you can handle this yourself, and when to retain a Florida estate planning attorney

Most people can update a straightforward beneficiary form without a lawyer. What needs counsel is not the form — it is the decision behind it: a trust, a minor, a disabled beneficiary, a second marriage, a charity, or an account large enough that a compressed payout costs real money.

You can probably do this yourself if every account names a living adult you still intend to benefit, you are unmarried or your spouse is the sole primary beneficiary of everything, the amounts are modest, there has been no divorce, and there is no minor, no disabled beneficiary, no trust and no charity anywhere in the picture.

Retain a Florida attorney if any of the following is true:

• You are divorced, remarried, or in a second marriage with children from a first.
• You want to name a trust — the drafting decision between conduit and accumulation has to be made deliberately, not inherited from a template.
• A beneficiary is a minor, has a disability, receives needs-based benefits, or has creditor or divorce exposure.
• You are naming a charity alongside individuals.
• You are an FRS member, or you hold a self-directed IRA.
• The accounts are large enough that a compressed payout would push a beneficiary into the top bracket.
• Someone has died and you believe a designation was changed under undue influence, without capacity, or was never processed by the custodian.

Talk to a Florida estate planning attorney. A short call is usually enough to tell you whether your beneficiary forms do what you think they do, and what the deadlines are if someone has already died. There is no charge for it.

Call (305) 224-6811 or send us a message. Offices in Coral Gables and Fort Lauderdale, serving clients throughout Florida. See also our Miami estate planning practice and the Florida estate planning guide.

Frequently asked questions

Does a beneficiary designation override a will in Florida?

Yes. A beneficiary designation is a contract between you and the custodian, and the account passes outside probate. Your will controls only probate assets — property in your individual name with no surviving beneficiary named. The custodian pays the form and never reads the will.

Can I leave my 401(k) to my children instead of my spouse?

Only with your spouse’s written consent, witnessed by a plan representative or a notary public, under 29 U.S.C. § 1055(c)(2). Without that consent the plan pays your surviving spouse. An IRA is different — no consent is required to name anyone you choose.

Is my ex-wife still the beneficiary of my 401(k) after a Florida divorce?

Usually yes. ERISA preempts Fla. Stat. § 732.703, so a 401(k) pays whoever the plan document names, even after dissolution — Egelhoff v. Egelhoff, 532 U.S. 141 (2001). Your IRA is different: § 732.703(2) voids the former spouse’s designation automatically. FRS is exempt under § 732.703(4)(j).

What happens to my IRA if I do not name a beneficiary?

The custodial agreement’s default terms decide, and they usually direct the account to your surviving spouse or, failing that, to your probate estate. An estate is not a designated beneficiary, so the account must be emptied within five years, or over your own remaining life expectancy if you died on or after your required beginning date.

Should I name my living trust as beneficiary of my IRA in Florida?

Only if the trust is drafted to qualify as a see-through trust under Treas. Reg. § 1.401(a)(9)-4(f)(2). A conduit trust pays everything straight through to the beneficiary; an accumulation trust keeps control but is taxed at compressed trust rates. Documentation is due to the plan administrator or IRA custodian by 31 October of the year following death. A trust that fails the test drops the account into the five-year or ghost-life-expectancy rules.

How long do my children have to withdraw an inherited IRA?

Ten years for most adult children, under the SECURE Act of 2019. If you died on or after your required beginning date, they must also take annual required minimum distributions in years one through nine, a requirement that applies to distribution years beginning on or after 1 January 2025.

Are inherited IRAs protected from creditors in Florida?

Yes. Fla. Stat. § 222.21(2)(c) keeps the creditor exemption in place after the owner’s death, including in an inherited IRA. Florida protects what the federal bankruptcy exemption does not — the Supreme Court held in Clark v. Rameker, 573 U.S. 122 (2014), that an inherited IRA is not exempt “retirement funds” federally.

Can I name my minor child as beneficiary of a retirement account in Florida?

You can, but Fla. Stat. § 744.301(2) lets a parent collect and manage benefit-plan proceeds for a minor only up to $15,000 in the aggregate. Above that a court-supervised guardianship of the property is required. Naming a custodian under the Florida Uniform Transfers to Minors Act on the form itself avoids that.

Do Florida beneficiaries pay tax on an inherited retirement account?

Florida imposes no state income tax, no estate tax and no inheritance tax, so a Florida beneficiary pays federal income tax only. Distributions from a traditional IRA or 401(k) are ordinary income; qualified Roth distributions are generally tax free.

My father signed a new beneficiary form but the company never processed it. Does it count?

Usually not. Florida requires strict compliance with the custodian’s own change procedure, and proof of intent alone is not enough — Brown v. Di Petta, 448 So. 2d 561 (Fla. 3d DCA 1984). A form that was signed but never delivered, or delivered with critical fields blank, generally fails. Send written notice to the custodian before any payout; once the money is distributed the dispute becomes far harder.

How long does it take a beneficiary to receive a 401(k) or IRA after death?

Typically two to eight weeks from the date the custodian has a complete claim packet — a certified death certificate, the claim form, identification and a Form W-9. Competing claims, a missing beneficiary designation, or a trust or estate as beneficiary can extend that to months.

Can I roll an inherited retirement account into my own IRA?

Only if you are the surviving spouse. A non-spouse beneficiary must use a direct trustee-to-trustee transfer into an inherited IRA titled in the decedent’s name for their benefit, and cannot use a 60-day rollover. Taking the check personally makes the entire account taxable in that year.

What happens if my beneficiary dies during the 10-year period?

The successor beneficiary steps into the same clock rather than starting a new one. If your child inherits your IRA and dies in year four, their beneficiary must empty the account by the end of the original ten years, not ten years from your child’s death.

Can I refuse or disclaim an inherited IRA in Florida?

Yes. A disclaimer under Fla. Stat. § 739.104 must be in writing, signed, witnessed and acknowledged like a deed, and delivered to the custodian. It is irrevocable, and for federal tax purposes under IRC § 2518 it must be delivered within nine months of the death without your having accepted any benefit first. Florida Retirement System accounts allow 24 months under § 121.091(8)(b), but the nine-month federal window still governs the tax result.

Should I check “per stirpes” on my beneficiary form?

Usually yes, if you want a deceased child’s share to go to that child’s own children. Most custodial forms distribute per capita among the surviving primary beneficiaries by default, so if you name three children and one dies before you, that share is split between the other two — and your grandchildren receive nothing. Florida’s antilapse statute protects gifts under a will; it does not rescue a non-probate beneficiary designation.

Can I name a beneficiary who is not a U.S. citizen?

Yes, and the ten-year rule applies the same way. Expect flat 30% U.S. withholding on distributions to a non-resident alien unless a treaty rate applies and a Form W-8BEN is on file, and confirm the custodian will open an inherited IRA for a foreign address before you rely on the plan.

About the author

Jose M. Lorenzo, Jr. is a Florida attorney whose practice focuses on probate, trusts and estates, guardianship and estate planning. He earned his J.D. from Florida International University College of Law in 2013 and was admitted to The Florida Bar on 4 October 2013 (Bar No. 107002) and to the U.S. District Court for the Southern District of Florida. He represents clients throughout Florida from offices in Coral Gables and Fort Lauderdale, and practices in English and Spanish. Florida Bar profile.

This page is general information about Florida and federal law, not legal advice, and reading it does not create an attorney-client relationship. Retirement account rules change; this page was last reviewed on 24 August 2026.