The short version
- A will does not override a beneficiary designation. A 401(k), IRA, life policy or payable-on-death account passes by contract to the person named on the form, and the will never reaches it.
- For an employer 401(k) or pension, federal law tells the administrator to pay the named beneficiary. Egelhoff (2001) held state revocation-on-divorce statutes preempted; Kennedy (2009) held that a waiver in a divorce decree is not a change of beneficiary.
- IRAs and life insurance sit under state law, where a revocation-on-divorce statute can reach them. Around half the states have one — so a single divorce produces different results on different accounts.
- If a named beneficiary dies before you and you never elected per stirpes, their children usually take nothing. If nobody named survives, the asset drops into the estate, which for a retirement account also shortens the payout window.
A will only reaches what no form has already claimed
A will disposes of the probate estate: assets in the deceased's sole name with no surviving co-owner and nobody named to receive them. Everything else moves as a non-probate transfer. The bank pays the payable-on-death payee because the account contract says so; the insurer pays the named beneficiary because the policy does. No court directs either, and no executor is involved.
So the answer to whether a will overrides a beneficiary designation is a flat no. A will reciting "I leave my retirement savings to my daughters" does nothing to a 401(k) form naming your brother. The documents are not in competition; they address different assets. What happens if you die without a will covers what the statute does with the part the forms leave behind.
The question that decides which system applies
Does the asset carry a beneficiary line, a POD payee or a surviving joint owner?
Yes — someone is named
It passes by contract on the date of death, directly to that person. It never enters the probate estate and the will is never consulted, however recently it was signed.
No — sole name, nobody named
It falls into the probate estate. The will governs it, and if there is no valid will the intestacy statute does.
The federal rule that ignores your divorce decree
An employer 401(k) or pension is governed by ERISA, which at 29 U.S.C. § 1144(a) supersedes state laws "insofar as they may now or hereafter relate to any employee benefit plan". Most of the state rules people assume protect them are exactly that kind of law.
In Egelhoff v. Egelhoff (2001) the Supreme Court struck down a Washington statute that automatically revoked a spouse's beneficiary designation on divorce, because it forced administrators to apply state law rather than the plan documents. The designation on file — the ex-wife's — stood.
In Kennedy v. Plan Administrator for DuPont Savings and Investment Plan (2009) the divorce decree expressly divested the ex-wife of her interest, and the participant never changed the form. The Court held the administrator was right to pay her, because 29 U.S.C. § 1104(a)(1)(D) requires a fiduciary to act "in accordance with the documents and instruments governing the plan". A waiver in a decree is not a change of beneficiary. Boggs v. Boggs (1997) had already held that a non-participant spouse could not pass an interest in undistributed pension benefits by will.
An IRA and a life policy run on different rules
IRAs are not ERISA Title I plans, and a privately bought life policy is not one either. Both sit under state law, which is where the automatic protections live. Around half the states have a revocation-on-divorce statute modelled on Uniform Probate Code § 2-804. Minnesota's version revokes dispositions to "the individual's former spouse or any members of the former spouse's family who are not also members of the individual's family" — and expressly excepts a plan document governing a qualified retirement plan, which is the ERISA carve-out written into the state statute itself.
Those statutes are durable. In Sveen v. Melin (2018) the Court applied Minnesota's law retroactively to a policy bought before the statute existed and found no Contracts Clause violation, noting that 26 states had adopted substantially similar laws. Federal employees run the other way: in Hillman v. Maretta (2013) Virginia's backup provision — making the ex-spouse repay the proceeds — was itself preempted by the federal employees' life insurance statute.
The same divorce, four different answers
What the divorce paperwork did
Which law governs the asset
State law — IRA, life policy
ERISA — 401(k), pension
The decree waived their interest
Usually recoverable
A waiver plus a revocation statute normally gets the money to the estate, though the insurer may pay it into court and let the claimants argue.
The ex-spouse is paid
Kennedy: the administrator follows the plan documents. The waiver was valid and still did not stop payment.
It said nothing about beneficiaries
Turns on your state
Around half of states revoke the former spouse automatically. In the rest the designation stands.
The form is the whole answer
Egelhoff: the state revocation statute never reaches the plan. Nothing outside the file matters.
Last will and testament template
Read the full clause structure free, including the residuary clause that catches whatever the forms did not. Then treat the forms as a separate job — the will does not do it for you.
Your spouse may already own the 401(k) death benefit
A married participant is not free to name whoever they like. Under 29 U.S.C. § 1055(b)(1)(C), an individual account plan escapes the survivor annuity rules only if the whole nonforfeitable balance is payable on death to the surviving spouse — unless that spouse consents. Section 1055(c)(2) is strict about what consent means: in writing, acknowledging the effect of the election, and "witnessed by a plan representative or a notary public".
The failure mode is quiet. A married participant names their children on the form and files it. Without a witnessed spousal consent the designation is not effective against the spouse, so on death the plan pays the spouse the whole balance — after twenty years in which the participant believed otherwise. A consent is also one particular spouse's consent, not a waiver that carries into a later marriage.
IRAs carry no equivalent federal requirement: name anyone, and the custodian will accept it. In community property states a spouse may still have a claim to their share of what went in during the marriage, which is worth checking locally.
What happens when a beneficiary dies before you
This is the trap that catches people who filled in their forms correctly, decades ago. Most forms divide the money among the surviving named beneficiaries. Name three children equally, and if one dies before you the survivors take half each while the dead child's own children take nothing. Nothing in the will fixes it, because the will still does not reach the asset.
The alternative is a per stirpes election, which sends a deceased beneficiary's share down to their descendants. Some forms have a tick box; some do not offer it, and the answer is then an explicitly named contingent. Either way it is an election you make, not a default.
Worse is when nobody named survives and no contingent was added. Colorado's payable-on-death statute puts it plainly: "If no beneficiary survives, sums on deposit belong to the estate of the last surviving party." The account set up to avoid probate goes into probate.
The audit almost nobody does
Every asset that decides for itself
- Every employer plan, dormant ones included — old plans are where former spouses survive longest.
- Every IRA and rollover IRA separately: a rollover does not carry the old beneficiaries across.
- Life insurance — employer group cover, private policies, and cover attached to a mortgage or union.
- Payable-on-death accounts, transfer-on-death registrations, annuities and health savings accounts.
- Joint tenancy with right of survivorship, which passes to the co-owner whatever the will says.
- For each: ask the provider in writing what is on file, and read the contingent line as well as the primary.
Do it after any of the four events that make a form wrong: marriage, divorce, a birth, a death. Divorce is the one people think they have handled, because a divorce settlement agreement dealt with the accounts on paper. Divorce settlement agreements explains what that document does not execute by itself.
If the wrong person has already been paid
The Court in Kennedy expressly declined to say whether the estate could sue the ex-wife once the plan had paid her. Whether a claim against the recipient survives therefore depends on which court you are in and what your state provides. Every route below opens with sworn evidence of what the deceased intended, which is what an affidavit is for.
After the payment, the options only get worse
- Free
Ask the recipient to disclaim
A disclaimer must come before the person accepts any part of the benefit, and the deadlines are short.
- Low
Use the state restitution provision
Some revocation statutes create a claim against the payee. Hillman shows federal preemption can kill even that backup remedy.
- Moderate
Sue the recipient in state court
Available in some jurisdictions on unjust enrichment or constructive trust, but Kennedy left the question open, so the answer varies by circuit.
- The account
Accept the outcome
On a modest balance the litigation costs more than the money. Most of these end here.
Every rung is slower and dearer than the ten minutes a new form would have taken.
What the will is actually for
None of this makes the will optional. It names an executor, nominates a guardian, and catches everything with no form of its own — the house in a sole name, the car, the personal effects, the account nobody thought about. It is also the only document that addresses children too young to receive money outright. What makes a will valid covers the execution rules that decide whether it works at all.
What it is not is the controlling document. For most households the estate plan is a set of forms held by four or five institutions, each of which will do exactly what its own record says and look at nothing else. The plan is only as current as the oldest of those records. If you have not seen them in writing, you do not know what your estate plan says.
Sources
- Egelhoff v. Egelhoff (2001) — Cornell LII
- Kennedy v. Plan Administrator for DuPont Sav. & Inv. Plan (2009) — Cornell LII
- Boggs v. Boggs (1997) — Cornell LII
- Sveen v. Melin (2018) — Cornell LII
- 29 U.S.C. § 1055 (survivor annuities and spousal consent) — Cornell LII
- 29 U.S.C. § 1056(d) (anti-alienation and QDROs) — Cornell LII
- IRS — Retirement topics: divorce
General information, not legal advice. This guide explains how these documents and rules generally work. Law varies by jurisdiction and changes, and none of it is applied to your circumstances here. For anything consequential, consult a licensed attorney where you are.
Frequently asked
Does a will override a beneficiary designation?
No. A will governs the probate estate — assets in the deceased's sole name with nobody named to receive them. An account with a beneficiary form, a payable-on-death payee or a surviving joint owner passes by contract on the date of death and never enters that estate. The provider pays what its own record says, and a more recent will makes no difference.
My ex-spouse is still named on my 401(k) after the divorce. Who gets it?
On the current position, they do. ERISA requires the administrator to follow the plan documents, and the Supreme Court held in Egelhoff that state statutes revoking a former spouse's designation are preempted, and in Kennedy that a waiver in a divorce decree is not a change of beneficiary. Only a new designation filed with the plan, or a qualified domestic relations order, changes the result.
Is a payable-on-death account better than leaving money in a will?
It is faster and cheaper, because the money passes outside probate to the named payee. The trade-off is that it is inflexible: it cannot be conditioned, staged over time or adjusted for who else received what. It also fails awkwardly — if no named payee survives you, the balance falls into the estate anyway, and then the will governs it after all.
What happens if a beneficiary dies before I do?
Most forms divide the money among the surviving named beneficiaries, so a deceased beneficiary's children take nothing unless you made a per stirpes election or named them as contingents. If no primary or contingent beneficiary survives you, the asset drops into the probate estate. For a retirement account that also removes the ability to stretch withdrawals, which accelerates the tax.
Do I still need to name beneficiaries if I have a will?
Yes, on every account that offers the option. The will does not reach those assets, so a blank form means the money goes to the estate, through probate, on a slower timetable and sometimes with a worse tax result. Naming a primary and a contingent beneficiary takes minutes and is the only instruction the provider will actually follow.