In this guide(11 sections)
You've made a will, or you're about to, and someone has said "but what about your super?" It's a good question to ask — and a surprising number of people discover the answer only when it's too late to change it. The good news: you can have a say in who receives your super, and the paperwork is usually simpler than people expect. Below is how death benefit nominations work, in plain English. You don't have to work it out alone — fill in the enquiry form and Elisa will call you back. The first 30 minutes are free.
This guide is general information, not legal advice for your situation, and it is not financial or tax advice. Your fund's own rules matter a great deal, so please get advice before you sign anything.
At a glance — death benefit nominations
| The core point | Super is usually held by a trustee and is not automatically part of your estate, so your will generally does not control it |
| Binding nomination | A direction the trustee must follow if it is valid and the fund's rules allow it — reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) |
| Non-binding nomination | A wish the trustee takes into account but isn't bound by |
| Who can be named | Your dependants or your legal personal representative (the executor of your will) — reg 6.22 SIS Regulations |
| Who is a dependant | Defined in s 10 of the Superannuation Industry (Supervision) Act 1993 (Cth): spouse, children, financial dependants and people in an interdependency relationship |
| Lapsing | Many binding nominations lapse after 3 years unless renewed; some funds offer non-lapsing nominations |
| Witnesses | Two adult witnesses who are not named in the nomination |
| Family law | Super can be property in a family law matter — see our guide on superannuation and divorce |
| First consultation | Free, 30 minutes, in confidence |
Does my super go where my will says?
No — super is generally held on trust by the fund trustee, so it usually passes under the fund's rules and any valid nomination, not under your will. This catches many families by surprise, especially when someone has carefully planned their house and savings in a will and assumed super would follow.
When you die, the trustee decides who receives your super death benefit, within the limits the law sets. If you have made a valid binding nomination, the trustee must pay as you directed. If you haven't, the trustee generally has discretion, guided by your non-binding wishes and the fund's rules.
There is one important exception. If your nomination names your legal personal representative, or the benefit is otherwise paid to your estate, the money then forms part of the estate and is dealt with under your will. That can be a deliberate choice, and we'll come back to it below.
What is a binding death benefit nomination?
A binding death benefit nomination is a written direction to your super trustee about who must receive your death benefit, and the trustee is obliged to follow it if it is valid and permitted under the fund's trust deed. The rules for these nominations sit in regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
To be valid, a binding nomination generally must:
- Name eligible people only — your dependants, your legal personal representative, or a mix of both
- Be in writing and signed and dated by you
- Be witnessed by two people who are at least 18 and are not named in the nomination
- Be given to the trustee and be current when you die
- Comply with the fund's own requirements — many funds have a prescribed form
If any of those steps is missed, the nomination may not bind the trustee. Small technical errors have been enough to defeat a nomination in the courts, which is why getting it right matters.
What's the difference between binding, non-binding and non-lapsing nominations?
A binding nomination must be followed by the trustee, a non-binding nomination is only a guide, and a non-lapsing nomination is a binding nomination that doesn't expire after three years.
A non-binding nomination tells the trustee who you'd prefer. The trustee considers it, but may pay someone else — for example, if circumstances have changed or another person is financially dependent on you. These are flexible, but they give you less certainty.
A binding nomination gives you certainty, but it isn't set-and-forget. Under the regulations, a binding nomination can lapse three years after it was signed or last confirmed, unless the fund's trust deed provides otherwise. Many people forget to renew, and the protection quietly disappears.
A non-lapsing binding nomination doesn't expire, if your fund offers it. It stays in place until you change or revoke it. That's convenient, but it also means an old nomination can stay in force long after your family situation has changed. Whether your fund offers non-lapsing nominations varies, so check your fund's rules.
Who can I nominate to receive my super?
You can only nominate your "dependants" or your legal personal representative, as set out in regulation 6.22 of the SIS Regulations and the definition of "dependant" in section 10 of the SIS Act. You can't name just anyone — a friend, a sibling or an adult independent relative may not qualify.
In general terms, dependants include:
- Your spouse or de facto partner
- Your children — of any age, for these purposes
- A person who is financially dependent on you
- A person in an interdependency relationship with you — a close personal relationship where you live together and provide financial, domestic or personal support for one another (with some exceptions where a disability prevents living together)
The tax rules use a different dependant test again, so the person who may receive your super under the fund rules is not always the person who gets the best tax outcome. We don't give tax advice, and this is a point on which your accountant or financial adviser should be involved.
If you want your super to go to someone who isn't a dependant, the usual route is to nominate your legal personal representative. The money then passes through your estate and is distributed under your will.
Why would I nominate my estate instead of a person?
Nominating your legal personal representative sends your super into your estate, so your will controls who receives it — which can suit blended families, young beneficiaries or people who want to use a testamentary trust.
Some situations where people consider this:
- You want one document to control everything. Your will already sets out who gets what, and you'd like the super to follow.
- Your beneficiaries are young or vulnerable. Super paid into the estate can be directed into a testamentary trust under your will, rather than paid straight to a child.
- Your family is blended. You may want to provide for a new partner and for children from an earlier relationship in agreed proportions.
There are trade-offs. Money that goes through the estate can be exposed to a family provision claim (see our guide on contesting a will in Victoria), and the tax result can differ from a direct payment to a dependant. Whether it's the right choice depends on your family and your numbers, so it's worth a conversation with your lawyer and your financial adviser together.
Not sure whether your super and your will line up? Book a free 30-minute call → · or speak to Eliana, our assistant, any time on 03 4328 5084 — she'll get your matter to Elisa quickly.
What happens to my nomination after separation or divorce?
A divorce or separation does not automatically cancel a death benefit nomination — it generally stays in force until you change it, lapse it or revoke it. This is one of the most important and most overlooked points.
Divorce can affect your will. Under the Wills Act 1997 (Vic), for example, a divorce generally affects gifts to a former spouse. But a super nomination is a separate document held by the fund, and it is not automatically updated. If you named your former partner and then separated, they may still be the person the trustee is directed to pay — unless the nomination has lapsed or you've replaced it.
Super is also dealt with in a family law property settlement. It can be split between separating spouses by agreement or court order. Our guide on superannuation splitting in divorce explains how that works. After a settlement, it's wise to review every nomination, your will and your enduring power of attorney, so they all reflect your new circumstances.
How do I make, change or cancel a nomination?
You make a nomination by completing your super fund's own form (or a valid written direction), having it properly witnessed and giving it to the trustee — and you change or cancel it the same way.
In general terms:
- Check your fund's rules. Find out whether it accepts binding nominations, whether it offers non-lapsing ones, and what form it requires.
- Decide who and how much. You can usually split your benefit by percentage between several people.
- Complete and sign the form in front of two eligible witnesses.
- Send it to the trustee and keep a copy and the fund's confirmation.
- Diarise a review. Put a reminder in for just before three years, and after any major life event.
If you have more than one super account, you'll need a nomination for each fund. Self-managed super funds work differently again, because the trustees are often the members themselves, and the trust deed and the choice of trustee after death raise their own questions. That's a situation where specialist advice is particularly worthwhile.
What goes wrong with super nominations?
These are common situations, described generally — they are examples only, not any particular client's matter:
The lapsed nomination. Someone signs a binding nomination, forgets about it, and dies four years later. The nomination has lapsed, the trustee uses its discretion, and the result isn't what the person intended.
The ex who is still named. A person separates, updates their will, but never touches their super paperwork. The former partner remains the named beneficiary.
The invalid witness. A nomination is witnessed by someone who is also named as a beneficiary. The trustee decides it isn't binding.
The will that says one thing and the fund another. A family plans carefully for the home and savings, but the super — often a large part of the total — passes to someone else entirely under the fund's rules.
Frequently asked questions
Does my super go to the person named in my will?
Not usually. Super is generally held by the fund's trustee and paid under the fund's rules and any valid nomination. It only follows your will if it is paid to your legal personal representative or your estate.
What is a binding death benefit nomination?
A written direction to your super trustee, made under regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth), that the trustee must follow if it is valid and permitted by the fund's rules.
Do binding nominations expire?
Many lapse three years after they were signed or last confirmed, unless the fund's trust deed says otherwise. Some funds offer non-lapsing nominations. Check your fund's rules and diarise a review.
Who can I nominate to receive my super?
Your dependants — such as a spouse, children, a financially dependent person or someone in an interdependency relationship — or your legal personal representative.
Does divorce cancel my death benefit nomination?
No, not automatically. The nomination usually stays in force until it lapses or you change it, so review it after any separation.
Can I leave my super to a friend or sibling?
Not directly, unless they qualify as your dependant. The usual option is to nominate your legal personal representative so the money passes through your estate and your will decides who receives it.
Do I need a lawyer to make a nomination?
You can complete a fund's form yourself, but errors can make a nomination ineffective. Elisa can check that it fits with your will and your wider plans, and refer you to a financial adviser or accountant for the tax side.
Feeling unsure? That's exactly what Elisa is here for
Thinking about what happens after you're gone is never easy. Elisa will listen, explain where you stand in plain language, and help you decide on a calm, sensible next step — with costs discussed openly from the start. See also our estate planning page, or ask about a will and related documents in your free consultation. Elisa confirms your price in writing after it.
The first 30 minutes are free.
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Written and reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Wills, estates and family law in Melbourne since 2012.Last reviewed 4 November 2026.
This guide is general information about Victorian wills and estate planning, not legal advice for your specific situation. For advice on your matter, book a free 30-minute consultation.