Superannuation and Estate Planning

Wills and Estates
Written By Kimberley Davis

Your superannuation death benefits do not automatically form part of your estate.  How you deal with your superannuation though, is an important part of your estate planning. 

 

Recent research reveals that at least 6.5 million Australians have no say in who receives their superannuation when they pass away, either because they have made no nomination at all or their nomination is not legally binding.[1]

 

Further, disputes over superannuation death benefits are becoming more common, especially in blended families.  It is therefore critical to keep nominations up to date and aligned with your estate planning.

 

Who can receive your superannuation?

Your superannuation death benefit can only be paid to:

  • Your dependents, such as:

    • your spouse or de facto partner;

    • your children of any age, or

    • someone in an interdependent relationship with you.

  • Your legal personal representative (i.e. the executor of your estate).

Types of death benefit nominations

Tax consequences

Superannuation death benefits may be taxed, depending on:

·            who receives the benefit (tax dependents vs non-tax dependents);

·            The components of the super (taxable vs tax-free), and

·            Whether it is paid directly or via the estate.

Why it matters

 

Superannuation is one of the most significant assets Australians hold, but unlike other assets, it does not automatically follow your will. Without a valid binding nomination, you risk leaving its distribution to chance or dispute. A properly executed binding nomination gives you peace of mind and ensures your wishes are followed, however it is not the best option for everyone.

 

Contact an Estate Planning Lawyer at McCarthy Durie Lawyers who can:

·         help you make legally valid binding nominations;

·         coordinate your Will and superannuation to work together;

·         advise on tax-efficient strategies, and

·         prevent or minimise future disputes or unintended outcomes.

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[1] Nassim Khadem, ‘Who Gets Your Super When You Die? The Trap That Could Derail Your Final Wishes’ (ABC News, 26 August 2025) https://www.abc.net.au/news/2025-08-26/who-gets-your-superannuation-when-you-die-binding-death-benefits/105678326.

Kimberley Davis

Kimberley Davis is a Special Counsel in the Wills and Estates team at our Redlands office. She assists clients from both the Brisbane CBD and Redlands offices.

Kimberley is a highly experienced succession lawyer who has dedicated her career to all aspects of estate law, with a particular focus on estate planning and estate administration. She takes pride in helping clients navigate the often complex legal and emotional challenges that succession law presents. Kimberley aims to structure clients’ affairs to facilitate a smooth transition of wealth from one generation to the next.

Her areas of expertise include:

  • Complex and simple Wills, including testamentary discretionary trusts

  • Enduring Powers of Attorney and General Powers of Attorney

  • Binding Death Benefit Nominations

  • Letters of Wishes

  • Estate Administration, including obtaining grants of administration

Qualifications:

Masters of Applied Law (Succession Law)

Bachelor of Laws

Bachelor of Business

Graduate Diploma of Legal Practice

 

Memberships:

Queensland Law Society

Taxation Institute of Australia

Society of Trust and Estate Practitioners

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