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SMSF Death Benefit Agreements end the "lapsing/non-lapsing binding death benefit nominations" confusion

SMSF members can now arrange binding Death Benefit Agreements that do not lapse after 3 years — the agreement binds the trustee(s) until the member revokes it.

Paul Ellis and Julian Smith

Why are the new Death Benefit Agreements needed?

ClearLaw has previously warned on the risks associated with making binding death benefit nominations that are not consistent with all of the requirements specified in superannuation law, including the 3 year lapsing requirement (click here to read more).

Many SMSF members want to bind their trustees as to how their benefits are to be paid after they die. The trouble is, superannuation law requirements say that after 3 years, a binding death benefit nomination expires. After it expires, the trustees (or other directors of the trustee) are free to distribute the relevant money anyway they like that the law allows — often, even to themselves.

How can SMSF members eliminate uncertainty about how their death benefits will be paid?

SMSF members can eliminate uncertainty about how their death benefits will be paid by:

  • giving a properly executed binding death benefit nomination to the SMSF trustee that is completely consistent with all requirements of the superannuation law — including the requirement that it expire after 3 years. Members then need to update their death benefit nomination at least every 3 years; or
  • incorporating specific death benefit payment provisions into the SMSF's deed through a Death Benefit Agreement and then implementing the permanent (until revoked) binding Death Benefit Agreement.

How can an SMSF deed allow Death Benefit Agreements?

Provided that the right clauses are present, a SMSF deed can provide for SMSF members to make a Death Benefit Agreement that:

  • does not lapse;
  • is binding on the SMSF trustee;
  • takes priority over death benefit notices and non-binding nomination forms;
  • lets the SMSF trustee avoid making a payment that would be required by the Death Benefit Agreement but is prohibited by superannuation law (such as a payment to a non-dependant); and
  • allows the SMSF member to terminate the agreement by notice to the trustee or to replace it with another Death Benefit Agreement.

How does the Death Benefit Agreement work?

A Death Benefit Agreement is an agreement between an SMSF member and the SMSF trustee that — when executed — forms part of the SMSF's deed. The agreement specifies how the SMSF member's benefits are to be paid after the member dies in the same way that a binding death benefit notice does. But, because the Agreement is supported by the SMSF deed — and does not purport to be a binding death benefit notice under the superannuation law — it does not lapse until:

  • the member terminates it by notice; or
  • the member replaces it with another Death Benefit Agreement.

Do I need to update the SMSF deed?

The Death Benefit Agreement depends on the SMSF deed containing the clauses that support the Agreement. Without those clauses, the Agreement would be invalid. So, any SMSF member with an existing fund who wishes to make a Death Benefit Agreement, needs to arrange for the SMSF's deed to be updated first.

Other good reasons to update SMSF deeds now are set out in another ClearLaw article.

Questions & Further Information

For questions or more information about SMSF deeds, the payment of death benefits and succession planning generally call Maddocks in Melbourne (03 9288 0555) and ask for a member of the Maddocks Superannuation Team.


Lawyer in Profile

Jack Coventry
Jack Coventry
Senior Associate
+61 3 9258 3819

Qualifications: BA (Philosophy), Monash University, JD (Juris Doctor), University of Melbourne

Jack is a member of Maddocks Commercial team. He advises a range of corporate and private clients on:

  • M&A transactions,
  • corporate reorganisations, and
  • legal and tax structuring.

Jack acts for clients on both buy-side and sell-side and specialises in founder-owned businesses and Australian subsidiaries of multi-national companies. He works across a number of sectors including information technology, professional services, and property development and management including land lease.

Jack’s structuring work includes assisting multinationals to structure Australian operations, listed companies to achieve regulatory compliance / optimisation and providing general tax structuring. He has also represented clients in tax controversies including before the General Anti-Avoidance Review Panel (GAAR Panel) and the Federal Court of Australia.

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