When a marriage or defacto relationship breaks down, the law is very specific in how it deals with superannuation. The Superannuation Splitting Law allows couples to value the superannuation and split it fairly between them.

It's important to note that split super is not converted into cash. It remains a superannuation investment and continues to be subject to preservation and other superannuation regulations.

Before superannuation can be split, it must be valued. A formal submission must be made to the trustee of the super fund confirming your entitlement to request this information.

The Superannuation Information Kit available from www.familycourts.gov.au contains all the details and forms you'll need for the entire valuation and splitting process.

Contact Timothy Foster from APS Financial Planning should you require assistance with your superannuation.

Do you have superannuation in any of the following?

• PSSAP – (e.g. if you have joined the Commonwealth Public Service within the last 9 years),

• An industry Fund (e.g. CBus, HESTA, Hostplus),

• A public retail fund (e.g. AMP Super, Colonial First State, BT Super), or

• A self-managed superannuation fund (you are a trustee or director of trustee).

If so, then it is important that you consider putting in place a "binding death benefit nomination" (BDBN) to cover what happens to your superannuation when you pass away.

If you already have a BDBN in place, you should check that it is still what you want and that it has not lapsed.

If you do not have a BDBN then it will be up to the trustee of the super fund to decide where your super is paid, which may not be what you would have wanted at all. Also, the absence of a BDBN will most likely cause unnecessary additional time, cost and inconvenience to the persons you have appointed as executors in your will. If you do not have a will then the potential problem is compounded.

A recent court case has highlighted this issue. The case concerned a mother who was in charge of the estate of her late son, where there was no will and there was superannuation not covered by a BDBN. The court decided that the mother was under a duty to request that the super be paid to the estate (where it would have to be shared with the late son’s father, who was estranged from the mother). This meant that the mother was under a duty to act in a way which was:

• contrary to her own best interests as potential beneficiary (she would receive only half the super instead of it all);

• contrary to good tax advice (as more tax would likely be payable if the super was paid to the estate); and

• contrary to the late son’s known wishes (he wanted all the superannuation to go to his mother).

The only way to avoid these issues with certainty is to have a valid BDBN in place, but having a valid will also helps.

Did you know...
We can assist you with a variety of legal matters apart from wills and estates?

For example, if you are buying or selling real estate in Victoria then we can do the conveyancing for you at competitive rates.

Or 

if you have a company, a family trust or some other business or investment structure then we can assist you with the legal aspects of establishing or maintaining that business structure.

Contact APS Wills and Estates