WHY IT IS IMPORTANT TO GET YOUR AFFAIRS IN ORDER AFTER DIVORCE

A recent decision of the Superannuation Complaints Tribunal demonstrates why it is important to make arrangements for what you want to happen to your property in the future.

A member of a superannuation fund had a death benefit totalling $126,540.00. The member died in November 2009.

At the time of his death the member had an adult son from his first marriage and a spouse from his second marriage. The tribunal found that the marriage between the deceased member and the spouse had not been formally dissolved but the marriage had ended.

The deceased member did not leave a Will but he had nominated his son as his sole beneficiary when he completed his member application form in January 2000. In most cases, the trust deeds of superannuation funds provide that benefits of a deceased member can be paid in the Trustees discretion unless there is a binding nomination signed by the member. In most cases, in order for a binding nomination to exist, the nomination must be in writing, must be witnessed and needs to be renewed every 3 years.

In this case, while the deceased member had nominated his son, it was not a binding nomination required under the superannuation trust deed.

The trustee of the fund determined that it would pay the entire benefit to the spouse. The son made an application to the Superannuation Complaints Tribunal who after hearing the matter affirmed the decision of the Trustee.

So, what could the deceased member have done to ensure that his benefit was paid as he wished? There are several steps that could have been taken.

1. He could have arranged to sign a Binding Nomination with the superannuation trustee. This would have ensured that the benefit from his superannuation fund was paid in accordance with his wishes;

2. He could have filed an application for divorce provided that he had been separated from his spouse for 12 months. This would have had the likely effect that the Trustee would not have regarded the spouse as an appropriate beneficiary;

3. He could have made out a Will. Although superannuation benefits do not form part of a deceased’s estate, it may have strengthened the case for having the benefit paid to his son.

It is usually a good idea to get some legal advice, following the breakdown of a marriage or relationship , to ensure all the bases are covered with your financial affairs.

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