Your super is not part of your estate
Superannuation does not automatically form part of your estate, and your will does not control it. The fund trustee decides who receives your death benefit, unless you have a valid binding nomination directing them.
This is the most common and most costly misunderstanding in Australian estate planning. For many people superannuation and the life insurance held inside it is the largest single asset they own — and a will that carefully divides everything else may not touch it.
The kinds of nomination
| Type | Binding on the trustee? | Expires? |
|---|---|---|
| No nomination | N/A — trustee decides entirely | — |
| Non-binding | No — a guide only | No |
| Binding lapsing | Yes, if valid | Yes — after 3 years |
| Non-lapsing binding | Yes, if the deed allows | No |
| Reversionary pension | Continues to the reversionary beneficiary | No |
A non-binding nomination is only an expression of wishes. Trustees usually follow them, but they are not obliged to, and where family members are in dispute the trustee makes its own decision — a process that takes months and can be objected to.
The three-year trap
Check the date on your nomination
Under SIS Regulation 6.17A, a binding death benefit nomination must be in writing, signed before two adult witnesses who are not named in it, and name only dependants or your legal personal representative. Unless the fund's rules provide otherwise, it ceases to have effect three years after it was signed.
People sign one, file it, and never look again. A lapsed nomination is no nomination at all — the trustee decides.
Some funds now offer non-lapsing binding nominations, which do not expire. Whether yours does is a question for the fund, and it is worth asking. A divorce or the death of a nominated beneficiary can also invalidate a nomination that otherwise looks current.
Who can actually receive it
A death benefit can only be paid to a dependant as defined in the superannuation legislation, or to your legal personal representative.
- Your spouse, including a de facto partner
- Your child, of any age
- A person in an interdependency relationship with you
- A person financially dependent on you
- Your legal personal representative — your estate
You cannot nominate a friend, a sibling or a charity directly. If you want a benefit to reach someone outside that list, it must be directed to your legal personal representative and then dealt with under your will — which is one of the few situations where paying super into the estate is clearly right.
The tax trap for adult children
The definition of "dependant" for receiving a benefit is not the same as the definition for taxing it. A financially independent adult child can receive a death benefit, but they are generally not a death benefit dependant for tax purposes.
Broadly, the taxable component paid to someone who is not a death benefit dependant for tax purposes is taxed at 15% plus the Medicare levy. On a substantial balance that is a significant sum, and it surprises families who assumed superannuation passed tax-free.
There are planning responses — withdrawal and re-contribution strategies, timing, and directing benefits differently — and they need to be considered with your accountant or financial adviser well before they are needed.
Self-managed funds
Regulation 6.17A does not apply to self-managed super funds. That means an SMSF nomination is governed entirely by the fund's trust deed, and a non-lapsing nomination is possible if the deed permits it.
The larger SMSF issue is control. On a member's death, whoever controls the trustee decides how the death benefit is paid, subject to any binding nomination. Where a two-member fund loses one member, control can pass to a person the deceased would not have chosen. Succession of trusteeship should be planned deliberately alongside the nomination.
What it costs
- Fixed fee to review nominations with your will
- Advice on binding versus non-lapsing
- Coordinated with your accountant or adviser
- SMSF deed review quoted separately
- Diarised review so nominations don't lapse
- No charge to tell you what you need
Frequently asked questions
Usually not. Superannuation does not automatically form part of your estate, and the fund trustee decides who receives your death benefit unless you have a valid binding nomination directing them, or you have directed the benefit to your legal personal representative.
Under SIS Regulation 6.17A, a binding nomination generally ceases to have effect three years after it was signed, unless the fund's rules provide otherwise. Some funds offer non-lapsing nominations. The three-year rule does not apply to self-managed super funds, where the trust deed governs.
Only a dependant as defined in the superannuation legislation — a spouse including a de facto partner, a child of any age, a person in an interdependency relationship, or a person financially dependent on you — or your legal personal representative. You cannot nominate a friend, sibling or charity directly.
Possibly. The definition of dependant for receiving a benefit differs from the definition for taxing it. A financially independent adult child can receive a death benefit but is generally not a death benefit dependant for tax purposes, and the taxable component is then taxed at 15% plus the Medicare levy.
By directing the benefit to your legal personal representative, so it is paid into your estate and then distributed under your will. That is one of the few situations where paying superannuation into the estate is clearly the right approach, though it does expose the benefit to any family provision claim.
More information
Superannuation does not necessarily form part of your estate to be distributed by your Will.
Rockhampton superannuation lawyers
Our Lawyers can assist you in ensuring your superannuation, in the event of your death, goes to the person whom you intended to receive it.
Even if you don’t think you have much superannuation, often after your death, it is worth considerably more due to life insurance cover attaching to it. Our Rockhampton Wills & Estates Lawyers can offer advice about:
- Preparation of a Binding Death Benefit Nomination (BDBN)
- Taxation consequences of the distribution of your super
- Self-Managed Superannuation Funds
- Applications to receive your super prior to your death
We can also assist you with:
- Wills
- Testamentary Trusts
- Discretionary and Unit Trusts
- Powers of Attorney
- Business and Estate Planning
- Guardianship Matters
- Advance Health Directives
- Deceased Estate Administration (including where there is no Will called Intestacy)
- Applications for Probate or Grants of Administration
- Other Court Applications
- Advising Executors on their Duties
- Advising Beneficiaries on their Rights
- Estate Litigation and Disputes ( including Family Provision Applications)
- Mediation
Extensive Experience
Our professional team has extensive experience in a wide range of legal areas. Our approach is one of planning and involvement. We will continue to be there to support you with accurate and timely advice.
This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Figures set by regulation are indexed and change. Speak to one of our lawyers before acting.