For many Australians, superannuation is one of their largest assets, sometimes larger than their home. Yet many people do not realise that their Will does not automatically decide who receives their super when they die.
Why super is different
Superannuation is held in trust by the trustee of the super fund, not owned by you directly. When you die, the trustee decides who receives your death benefit, following the law and the fund’s rules. Your Will only governs super if the benefit is paid to your estate.
Superannuation law limits who can receive a death benefit directly. Generally, it can be paid to your spouse (including a de facto partner), your children, people who were financially dependent on you or in an interdependency relationship with you, or your legal personal representative (your executor).
Binding and non-binding nominations
Most funds let you tell the trustee where you want your benefit to go.
- A non-binding nomination is a guide only. The trustee will consider it but can decide otherwise.
- A binding nomination, if valid, requires the trustee to pay the people you name.
- Traditionally, many binding nominations lapse after three years unless renewed. Many people do not realise theirs has expired.
- Some funds offer non-lapsing binding nominations, which stay in place until you change or cancel them.
Funds are changing their rules. For example, from 16 October 2026 Cbus introduced online non-lapsing binding nominations and stopped offering non-binding nominations. HESTA has also introduced a non-lapsing option. If you have not checked your nomination recently, check it now.
Common problems we see
- A nomination that expired years ago.
- A former spouse still named after separation.
- A nomination in favour of a person who is not eligible to receive the benefit.
- Super paid to the estate when the person wanted it to go directly to a spouse, or the reverse.
- Life insurance held inside super that was forgotten entirely.
Tax is part of the decision
A death benefit paid to a spouse or a financially dependent person is generally tax-free. Paid to an adult child who was not financially dependent, the taxable component can be taxed. This affects whether it is better for super to go directly to a person or through the estate, and whether a testamentary trust should receive it.
Family members overseas
If your children or spouse live overseas, think carefully about how they will receive your super, whether they are eligible, and the tax consequences in both countries. Nominating your executor and dealing with super through your Will can sometimes give more flexibility, but it also exposes the benefit to claims against the estate.
How Chua Tan Associates can help
We review super, life insurance and death benefit nominations as part of every estate plan, so they fit with your Will. We advise in English, Mandarin and Cantonese.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice. Victorian law unless stated otherwise.
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