On 4 December 2008, the Same-Sex Relationship (Equal Treatment in Commonwealth Laws - Superannuation) Act was passed.

The Act amends legislation relating to superannuation so that same-sex couples can fall within the definition of spouse and changes the meaning of “child”.

The definition of spouse has been amended to include:

• another person with whom the person is in a relationship that is registered under a state or territory law;
• another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

This makes it easier for same-sex spouses to qualify as dependents for the purposes of payment of death benefits (including as a pension), and for same-sex spouses to challenge a death benefit payment decision in the Superannuation Complaints Tribunal (for non-self managed super funds). For example, there is no specified minimum time period for a couple to become “spouses”.

Previously, same-sex couples must have been in an interdependency relationship to qualify as a dependant for superannuation purposes.

The definition of child has also been widened to include “a child of the person’s spouse”. This will expand the class of potential beneficiaries and claimants for superannuation. For example, if two people are “spouses” and one dies, the children and step-children of the survivor are able to claim the deceased member’s superannuation, even if there has been little or no relationship. Also, if your “spouse” dies during the relationship, that person’s children and step-children can remain potential claimants even many years after the death of your spouse. 

Clients with these issues should review their estate planning, particularly how their superannuation is dealt with and whether a binding death benefit nomination is appropriate.

The amendments apply from the 2008/2009 income year.