Who can receive superannuation assets?

The Superannuation Industry Supervision Act 1993 (Cth) (‘the Act”) provides that the trustee of a superannuation fund must pay the deceased’s superannuation death benefit either to the deceased’s legal personal representative or to a dependant of the deceased.

‘Legal personal representative’ of a person is

1. the executor of that person’s Will, or
2. if there was no Will or no one was validly appointed by the Will, the person who applies to the Court and is granted the right to administer the estate.

If a superannuation death benefit is paid to the legal personal representative, it will form part of the deceased’s estate and be distributed along with the other assets according to the terms of the Will (if there is one) or the rules of intestacy (if there isn’t), or according to the orders of the Court if there is a successful challenge to the Will.

A ‘Dependant’ of a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.

A ‘spouse‘ of a person includes:

• another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
• another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

A ‘child‘ of a person, includes:

(i) an adopted child, a stepchild or an ex-nuptial child of the person; and
(ii) a child of the person’s spouse; and
(iii) someone who is a child of the person within the meaning of the Family Law Act 1975 .

 Interdependency relationship

1. For the purposes of the Act, 2 persons (whether or not related by family) have an interdependency relationship if:
   1. they have a close personal relationship; and
   2. they live together; and
   3. one or each of them provides the other with financial support; and
   4. one or each of them provides the other with domestic support and personal care.
2. For the purposes of the Act, if:
   1. persons (whether or not related by family) satisfy the requirement of paragraph (1)(1); and
   2. they do not satisfy the other requirements of an interdependency relationship under subsection (1); and
   3. they do not satisfy the other requirements in that either or both of them suffer from a physical, intellectual or psychiatric disability;
      they have an interdependency relationship.

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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.