A Binding Death Nomination is used to direct payment of your superannuation fund after your passing. However, your super can only be paid to your dependant or legal personal representative.
If your intended recipient does not fit the definition of a “superannuation dependant”, you may wish to allocate your superannuation as part of your estate instead.
What is a Binding Death Nomination?
After a member’s passing, the rest of his/her superannuation fund becomes a super death benefit. Without a binding death nomination in place, the trustee of the superannuation fund decides the payment of the super death benefit. This may not reflect your actual intentions!
Provided the superannuation fund trust deed permits, a binding death benefit nomination gives you the ability to direct the distribution of your death benefits in a particular way. This gives you and your intended beneficiaries a degree of certainty.
Who is a Superannuation Dependant?
You might find it shocking that the Superannuation Industry (Supervision) Act 1993 (Cth) has a limited definition of who is considered a “dependant”. Below is a summary of accepted dependants:
| Dependant | Superannuation dependant |
| Spouse | |
| Married | Yes |
| De facto | Yes |
| Former | No |
| Same Sex | Yes |
| Child (natural, step, ex-nuptial or adopted) | |
| Under age 18 | Yes |
| Over age 18 | Yes |
| Financial dependant (full or partial) | Yes |
| Interdependency Relationship | Yes |
Table 1: Breakdown of Recognised Superannuation Dependants
This definition disadvantages younger individuals because important family members (such as siblings, parents, and cousins) cannot become your nominee. You can only include them if there is proof of a degree of dependence, usually financial. For example, the payment of lodging to a mother – see Faull v Superannuation Complaints Tribunal [1999] NSWSC 1137. Or, the financial support of a close friend – see Noel v Cook [2004] FCA 479.
When Should I Nominate My Legal Personal Representative Instead?
When you want the money to go to a non-dependent, you should direct your super death benefit to your estate. Do this by nominating your legal personal representative in your Binding Death Benefit Nomination. You can then provide for the specific distribution of your super death benefit to non-dependants in your will. Additionally, if the intended recipient becomes ineligible under your will, the super death benefit will become part of the residual of your estate instead.
Need help optimizing your binding death benefit nomination? Take the first step in your estate planning. Contact Ezra Legal today for free preliminary information.
Lydia Ho
Solicitor
Ezra Legal
