25 Jun Superannuation Benefits – will they go where you want them to?
The media has recently highlighted the proposed payment of a $180,000 superannuation benefit in the highly publicised relationship of a Victorian Magistrate and his court clerk, many years his junior. It drives home the importance of taking superannuation into consideration when making your will. Further, consideration of your options if you are not satisfied with a superannuation fund’s decision.
Sadly, almost a year ago, the young court clerk died after being struck by a car. The superannuation fund is reported as indicating that it will pay the magistrate the super benefits on the basis that he was her de facto partner of some seven months. Apparently, there was a binding death nomination in favour of the deceased’s mother. Most funds make provision for binding or non-binding death nominations (BDNs). In this instance, the superannuation fund has chosen to bypass that nomination. We understand that the fund’s decision is being challenged.
This is not a unique situation. Amongst the matters we are looking at in this area is one where 16 year old and 18 year old daughters have had minimal amounts been provided to them by the superannuation funds. Their father’s superannuation funds have large superannuation benefits. The bulk of the benefits are going to his “de facto” partner of less than 12 months. We are taking steps to redress that.
Note the superannuation funds do not apply the criteria set out in State or Commonwealth law for a “domestic partnership” or a “defacto relationship”. Those laws generally specify periods of time (three years) and / or a child being born from the relationship, or having the relationship registered. You need to look at each circumstance carefully.
That said, in the matter we are attending to, the “de facto” partner comes nowhere near meeting the State or Commonwealth criteria for matters outside the superannuation arena.
Most persons will indicate that having young daughters excluded from a major share of superannuation benefits is unfair and that the superannuation laws need to be reviewed. That is true. However, in the meanwhile, we must work with the existing law.
It is important therefore to get prompt specific advice, as time limits may apply. One needs to look at various avenues to seek redress. As mentioned, this will need to be looked at carefully and promptly in each case.
We at Belperio Clark will be pleased to advise on such matters, when you are making your will and involved in estate planning, or when you are considering the estate of a deceased person.
Prepared by Eugene Reinboth