The account balance shown on your annual super statement can be misleading - if there's a life insurance policy held in there too.
So, what happens to a person's super funds (and any insurance payout) if they die? That's probably best shown by what happens when normal life becomes complicated.
In August 2017, the news reported a tragic loss of a young military serviceman Mr. Daniel L who suddenly died aged just 40. His girlfriend of nine months received the bulk of his military super fund balance.
- Daniel’s two children from a previous relationship missed out on receiving most of the superannuation as he hadn't nominated them as a superannuation beneficiary.
Daniel was employed in the military as a mechanic. One day while surfing with friends, he complained of chest pains, later collapsed and died aged 40.
- His former partner to his two children had been named as the sole beneficiary to his Will and so thought their financial future was provided for
- She was shocked to learn the majority of his military super fund - amounting to $451,500 (a combination of super plus super life insurance) - would not be distributed under his Will
- The super payout would be paid directly to his new de-facto of just nine months, leaving only a small provision for his children to his previous partner
In coming to this decision, the Trustee of the Military Super Fund relied on a past statutory declaration made by Mr L in August 2014, declaring ‘the woman was living with him as his "interdependent partner", which was supported by evidence of joint bills, joint banking activity and an employer's record accepting the information supplied’ as true.
- The family tried to appeal the Trustees decision not to distribute the balance of the super fund to the Will
- The appeal was rejected and the original super funds' decision was upheld
- His new defacto was formally recognised as being the lawful person Daniel intended to receive his super
- His new de facto was awarded ¾ of the super fund balance - $352,170
- Each of his daughters to a previous relationship, receiving just ¼ - $49,664
When it comes to deciding who can get the balance of your super fund (and its insurances) when you die, there are two clear procedures in place;
- The law states how to formally nominate who gets your super.
- If you don't formally make that nomination, the Trustee of your Super Fund will decide who gets the balance of your super fund.
If Daniel had completed a binding death benefit nomination, then it may have been a different story as to who received his superannuation.
Many of our clients are surprised to learn superannuation doesn’t automatically form part of their estate but is considered a formal ‘non-estate asset’ - therefore not automatically covered by their Will.
You cannot gift superannuation in your Will unless you have in place;
- a valid binding superannuation death benefit nomination lodged with your superannuation fund, and
- you've complied with all the legislative requirements to make it binding on the Super Fund Trustee.
There are various special considerations for people with Self Managed Super Funds, especially for stepfamilies. (You can read about them here). Some older SMSF Trust Deeds need updating to enable a binding nomination to be made, and still others are flawed in their wording referring to a 'Prescribed Nomination Form' that was never in existence anyway.
Get good financial advice. There are some things you shouldn't leave for a bout of DIY. People often neglect to pay as much attention to super as their Wills.
At Sapience we can help you deal with your superannuation and other property that you cannot dispose of in your Will - such as assets held as joint tenants, trusts or SMSF.
Our legal partners are the recognised experts in this field and you can access their significant legal expertise through us too.