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Distributing Superannuation Death Benefits

Superannuation - Death Benefits - Nominating Beneficiaries

It is important to remember that your superannuation funds are not automatically dealt with in your will. If you do not specifically tell the trustees of your superannuation fund who should receive your superannuation benefits after your death it is the Trustees of the fund who will decide how your funds are distributed. The Trustees will distribute your benefits among your dependents and your estate in whatever fashion they believe is fair and reasonable in the circumstances unless you have in place a "binding death benefit nomination".

Who can you nominate as a beneficiary?

Your spouse – they can be your legal or de facto spouse, who lives with you on a genuine domestic basis.
Your children of any age – including step-children, adopted or "ex-nuptial".
The executor of your will or administrator of your estate – your legal personal representative.
Anyone with whom you share an “interdependency relationship”.

In terms of the latter, an "interdependency relationship" is defined as a relationship between two people who have:

  • a close personal relationship; and
  • live together; and
    • one or each of them provides the other with financial support; and
    • one or each of them provides the other with domestic support and personal care.

An interdependency relationship may also exist where a close personal relationship exists between the two persons but because of a physical, intellectual or psychiatric disability, one or more of the other conditions are not met. The benefit can also be apportioned between any number of people as long as you provide details of those dependents and the specific share they should each receive.

It is important to appreciate that only the nominees who are dependent at the time of your death can directly receive your superannuation. If you don't have any qualifying dependents then you should nominate either your legal personal representative or the executor of your will. If there are no other dependents, then the funds will be almost certainly distributed to your estate for disposition through your will.

Note that binding nominations are typically only valid for a period of three years, and your super fund should advise you when your current nomination is about to expire. You can revoke or alter your nomination at any time by sending your super fund a new binding nomination – which needs to be witnessed by two independent individuals.

Remember also, if your nomination expires and you fail to renew it, your benefits will then be paid to your estate. Once you've made a binding nomination your superannuation is not, in the future, payable at the entire discretion of the trustee.

There also exist "non lapsing binding death benefit nominations" which, as the title suggests, are permanent nominations. These are not subject to the requirement that they be reviewed every three years, but not all funds will allow nominations of this nature. The concern is that nominations should be subject to regular review and a non-lapsing nomination risks funds being distributed in a fashion which reflects historical, rather than current, circumstances.

Finally, you can also have a "non-binding nomination", which merely inform the super fund trustees about who are your preferred beneficiaries. In this situation you are merely indicating a preference, and the trustees still retain the discretion to make the final decision with respect to any distribution, taking into account your preferences.

If there is any complexity at all in your situation, we strongly recommend that prior legal and/or tax advice is sought in terms of making any binding nomination. Bear in mind that leaving superannuation funds to someone who is considered a non-dependent under tax law can attract quite significant levels of tax.

If you would like to arrange professional advice in relation to the above matters, please complete the Inquiry form below providing details and you will be contacted accordingly. You will receive a fee quotation in advance of any advice or services being provided.