When someone dies with an ex-spouse still named as the beneficiary on their life insurance policy, families are often shocked by what actually happens. Many assume divorce wipes out the ex-spouse’s rights automatically—but that isn’t always true. In fact, in some situations the ex-spouse still receives the full payout.
Here’s a clear explanation of how this works under Florida law, and what to expect when this situation appears during probate.
Private vs. Employer-Provided Policies: The Key Difference
Before anything else, you must determine what type of policy you’re dealing with. Everything hinges on this.
Private life insurance policies (non-ERISA)
Under Florida Statute § 732.703, if the policy owner divorces after naming their spouse as beneficiary, the law generally treats the ex-spouse as if they predeceased the insured.
Unless one of the following happened:
- The divorce judgment required the ex-spouse to remain beneficiary
- The parties signed an agreement to keep the ex-spouse as beneficiary
- The insured re-designated the ex-spouse after the divorce
If Florida’s statute applies, the insurance company pays the contingent beneficiary.If no contingent is named, the proceeds go to the estate.
Employer-provided or ERISA-governed policies
These follow federal law, not Florida law.And under federal law, the named beneficiary receives the payout—even if they are the ex-spouse.
This is one of the biggest surprises families run into.
Does the Divorce Judgment Mention Life Insurance?
Some marital settlement agreements require one spouse to:
- Maintain life insurance, and/or
- Keep the former spouse as the beneficiary
If the insured later changes the beneficiary, the policy may pay the person currently listed—but the ex-spouse can sue the estate to enforce the agreement. Courts can impose a constructive trust on the proceeds to honor the divorce judgment.
If the divorce judgment contains any language about life insurance, it must be reviewed carefully.
Timeline Matters: Before or After the Divorce
It’s important to determine:
- When the beneficiary designation was made
- Whether the insured updated the designation after the divorce
- Whether the insured remarried
- Whether any backup beneficiaries exist
A fresh designation naming the ex-spouse after the divorce overrides Florida’s revocation statute.
What If You Represent the Ex-Spouse?
Key question:
“Was the policy employer-provided?”
- If ERISA → The ex-spouse likely gets the proceeds.
- If private → The ex may be revoked unless the divorce judgment protects them.
If the divorce required the insured to maintain the ex as beneficiary, they may still have a claim even if not listed.
What If You Represent the New Spouse or Children?
Your first step is the same: determine whether the policy is private or ERISA.
- Private policy → Good chance the ex is voided.
- ERISA policy → The ex is probably still entitled.
- Backup beneficiaries become important if the ex is voided.
- If the proceeds fall into the estate, probate may become more complex.
Conclusion
When an ex-spouse is named as beneficiary on a life insurance policy, Florida law does not give a one-size-fits-all answer. The key questions are:
- Is the policy private or employer-provided?
- Does the divorce judgment address life insurance?
- Was the ex re-designated after the divorce?
If you have questions about a life insurance issue involving a former spouse, or need help navigating how this affects a probate administration, contact Bart Scovill, PLC. We help families throughout Florida understand their rights and obligations during these situations.
Disclaimer:This article is provided for general informational purposes only and is not intended as legal advice. Reading this article does not create an attorney-client relationship. Life insurance beneficiary issues can be highly fact-specific, particularly when divorce, federal law, or prior court orders are involved. You should consult with a qualified attorney regarding your specific situation before taking any action. https://scovills.com/?p=3404
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