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QLD Is Mother Still Entitled to Father's Superannuation?

Discussion in 'Wills and Estate Planning Law Forum' started by stuckinthemiddle, 14 September 2016.

  1. stuckinthemiddle

    14 September 2016
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    Hi everybody,

    My parents got divorced in 1993. When they split, my father signed an agreement that he didn't have to pay my mother any money until he retired. The money that my mother is entitled to is a certain percentage of his superannuation from the time that they were married.

    My father retired last year due to ill health and my mother is now claiming what she is entitled to. My fathers sickness got the best of him earlier this year and he passed away. In his will, he left everything to my self and my brother 50/50. He did not mention the court document that he signed back when the divorce happened.

    My mother is now making a claim on the superannuation /deceased estate to get what she is entitled to. My brother is very upset with my mother and thinks that she is taking the money from us kids, and he does not want to give her anything. I have tried to explain to him that whether he passed away or not, when he retired, my mother would be making the claim anyway. It's just unfortunate that he has passed which I think makes it harder for my brother.

    I do know that the law has changed and the divorce agreement with getting superannuation on retirement is no longer around. The court document that my mother has, is it still valid?

    My mother has said that if she doesn't get what she is entitled to it will go to family court and she will end up winning and getting the money anyway. Does any of this sound right?

    Sorry if it doesn't make sense. It's hard for me to put what's going on into words.

    Any help will be appreciated. Thanks in advance
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    I don't think this is really a family law matter, so much as a wills and estates matter. I'd repost in the Wills and Estate Planning Forum, but fundamentally, these situations can be tricky, so I'd really encourage you to get legal advice about this one.
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  3. winston wolf

    winston wolf Well-Known Member

    21 April 2014
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    Is the super still in the fund?
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  4. Smiley

    Smiley Well-Known Member

    1 April 2015
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    It appears your mother could to be a person to whom a benefit could be paid to under the Estate. Further information is required to clarify. 

    If you would like me to elaborate some more, please confirm some additional information in order for me to do so: 

    1. Confirm if the superannuation fund has paid your late father's superannuation death benefit?

    2. If no, contact the super fund and ask if there is a "Family Law Payment Flag" on your late father's account? If a Flag is in place, it means before the Trustee of the fund pays a benefit, X amount as described in the Flag, which would theoretically be the amount stated in the Agreement, would be paid to your mother first, than the residual is paid to other beneficiaries such as your brother and you. 

    3. If no, confirm if the agreement you refer to is an informal verbal or hand written one between your late father and your mother, or if it is a formal legalised Agreement? To assist in identifying the latter, normally the Agreement would quote the Family Law Act 1975 and formally identify mum, dad, Trustee of super fund, date of divorce, base amount or percentage amount to be awarded to mum when a condition of release is met (generally retirement). There would be other information but this is the main information outlined in an Agreement of a legal nature. 

    Here is a link to some information that may help in terms of Agreements and superannuation. splitting frequently asked questions.pdf

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