Binding Death Benefit Nominations: Making Sure Your Super Goes Where You Want

General information, not legal advice. This guide is our best interpretation of Australian law as at October 2026. WillBuddy is not a law firm, and it never replaces advice from a lawyer, financial adviser or your super fund. If your situation is complex, or you are unsure about anything here, please get advice.

This guide explains how a binding death benefit nomination works: why your will does not control your super, the kinds of nomination, who you can name, how to sign one, and how to keep it in step with your will.

Quick Answer

Your super is generally not part of your estate and is not controlled by your will. Your fund's trustee pays it under the fund's rules and superannuation law. A valid binding nomination can require the trustee to pay your super to your dependants or your legal personal representative (your estate). In APRA-regulated funds it must be in writing, signed and dated in front of two adult witnesses who are not named in it, and it generally lapses after 3 years unless you confirm or update it (Superannuation Industry (Supervision) Regulations 1994 reg 6.17A). Self-managed super funds follow their own trust deed.

Why your will does not control your super

Your super is held in trust by your fund's trustee. When you die, the trustee pays your death benefit according to the fund's governing rules, which include its trust deed and the relevant law. The ATO describes a super death benefit as a payment to a dependant beneficiary, or to the trustee of a deceased estate, after the member has died.

So your will only reaches your super if the trustee pays it to your estate. A gift of "my super" in a will does not, on its own, bind the trustee. If you want a say in who receives it, you make a nomination with your fund.

The kinds of nomination

• Binding nomination. If it is valid and in effect, the trustee must pay your benefit to the people you name, in the proportions you set. Section 59(1A) of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) lets a fund's rules allow this, and regulation 6.17A of the SIS Regulations sets the conditions for APRA-regulated funds. A fund only offers binding nominations if its rules allow them.
• Lapsing and non-lapsing. A binding nomination under regulation 6.17A generally stops having effect 3 years after you first signed it, or last confirmed or amended it, or sooner if the fund's rules set a shorter period (reg 6.17A(7)). Some funds offer non-lapsing binding nominations under their own rules. Whether yours does, and how it works, is set by your fund.
• Non-binding nomination. This tells the trustee your wishes, but the trustee generally still decides who receives your benefit, within the law.
• Reversionary pension. If you are receiving a super pension, your fund's rules may let it continue automatically to a dependant when you die. The ATO notes a pension otherwise stops when the member dies. Under the SIS Regulations a death benefit can continue as a pension only to a dependant, and a child only in limited cases, such as being under 18 (reg 6.21(2A)).

If you have no valid nomination, or a binding nomination has lapsed, the trustee generally decides under the fund's rules.

Who you can nominate

In APRA-regulated funds, a binding nomination can only name your legal personal representative or your dependants (reg 6.17A(4)). The SIS Act defines these terms (s10):

• Legal personal representative: the executor of your will or administrator of your estate (the definition also covers a trustee for a person under a legal disability and an attorney under an enduring power of attorney).
• Dependant: the definition includes your spouse, your children and anyone with whom you have an interdependency relationship. It is not a closed list: the Full Federal Court has said a person who was financially dependent on you can be a dependant (Tratter v Aware Super [2024] FCAFC 36). If you are unsure whether someone counts, ask your fund.
• Spouse includes a registered partner and a person you live with on a genuine domestic basis as a couple.
• Child includes an adopted child, a stepchild, an ex-nuptial child and a child of your spouse. There is no age limit for super law.
• Interdependency relationship means two people who have a close personal relationship, live together, and where one or both provide the other with financial support and with domestic support and personal care (s10A). A disability can excuse some of these requirements.

Super law generally allows death benefits to be paid only to your legal personal representative or dependants (reg 6.22). If you want someone else, such as a friend or a sibling who is not a dependant, to benefit, the usual route is to nominate your legal personal representative so the benefit is paid to your estate, and to leave it to them in your will.

How to make a valid binding nomination

For APRA-regulated funds, regulation 6.17A(6) says the nomination must be:

1. In writing.
2. Signed and dated by you in the presence of two witnesses, each of whom has turned 18 and neither of whom is named in the nomination.
3. Containing a declaration signed and dated by both witnesses that you signed in their presence.

The share each person receives must be certain or readily worked out from the notice (reg 6.17A(4)(b)). You can confirm a nomination by a signed and dated written notice, and amend or revoke it by a notice that meets the same signing rules (reg 6.17A(5)). Use your fund's own form: small mistakes, such as a witness who is also named, can make a nomination invalid.

Self-managed super funds

In Hill v Zuda Pty Ltd [2022] HCA 21, the High Court held that regulation 6.17A does not apply to self-managed super funds (SMSFs). For an SMSF, whether a nomination is binding, how it must be made, and whether it lapses depend on the fund's trust deed, so its terms must be followed exactly. The rules limiting who can receive a death benefit still generally apply. If you have an SMSF, have your deed and nomination checked by an adviser.

Tax: dependants for super and dependants for tax

The ATO explains that the definition of "dependant" is different for tax. For tax, a death benefit dependant includes your spouse or de facto partner, a former spouse or de facto partner, a child under 18, a person financially dependent on you, and a person in an interdependency relationship with you.

According to the ATO, a lump sum death benefit paid to a tax dependant is tax-free. When it is paid to a non-dependant, such as an independent adult child, the taxable component is taxed; the ATO says the rate is at most 15% plus the Medicare levy for the taxed element and at most 30% plus the Medicare levy for any untaxed element. If the benefit is paid to your estate, the tax depends on whether the people who benefit from it are dependants, and the ATO says a non-dependant's share is taxed to the estate at 15% (taxed element) and 30% (untaxed element). The rules have more detail than this, so ask your fund, the ATO or a financial adviser before deciding who to nominate.

Practical steps

• Ask each fund for its form, and ask whether it offers binding nominations and whether they lapse.
• Check the expiry date if yours lapses, and confirm or renew it before then.
• Check every fund. A nomination covers only the fund it was made with.
• Keep it consistent with your will. If you nominate your legal personal representative, make sure your will says who should receive your estate.
• Review it after life changes, such as marriage, separation, a new child, or a death in the family. A nomination does not update itself.
• Remember insurance in super. The ATO says a fund generally pays any insurance benefits together with your remaining super as a death benefit, so check with your fund how your nomination applies to it.

How WillBuddy fits in

WillBuddy helps you make a will. A will cannot direct your super, so to decide where your super goes you need to make or update a nomination with your fund. If you list super when you make your will, WillBuddy's after-signing checklist reminds you to contact each fund and make or renew a nomination. WillBuddy is not a law firm or a financial adviser, and it cannot promise how a trustee will pay your super. If your situation involves an SMSF, a blended family, or someone who may not be a dependant, please get advice.

Start your will

Sources

• Superannuation Industry (Supervision) Act 1993 (Cth)
• Superannuation Industry (Supervision) Regulations 1994 (Cth)
• Hill v Zuda Pty Ltd [2022] HCA 21 (High Court of Australia)
• Tratter v Aware Super [2024] FCAFC 36 (Federal Court of Australia)
• ATO: Superannuation death benefits
• ATO: Paying superannuation death benefits