Consultation paper: Preventing perpetrators from accessing victims’ super death benefits

Submission Date: 1 June 2026

The Law Council of Australia provided a submission to respond to the Treasury’s Consultation Paper titled Preventing perpetrators from accessing victims’ super death benefits.¹ The Consultation Paper seeks feedback on policy options to prevent people who have committed family and domestic violence (FDV) from receiving the superannuation death benefits of victim-survivors. The proposals are:

• integrating the common law principle known as the ‘forfeiture rule’ into the superannuation death benefit framework;
• giving superannuation trustees greater flexibility over the distribution of superannuation death benefits to prevent perpetrators of FDV from receiving the death benefits of deceased victim-survivors. As summarised in the Consultation Paper,² these options are:
  • broad trustee discretion: legislative amendments to allow a trustee to set aside a person as an eligible beneficiary, set aside a member’s valid binding death benefit nomination (BDBN) or depart from an allocation otherwise required under the governing rules if the trustee believes on a fair and reasonable basis that the beneficiary has been a perpetrator of FDV against the deceased member;
  • prescribed approach: legislative amendments to enable the setting aside of a person as an eligible beneficiary, setting aside of a member’s valid BDBN or departing from an allocation otherwise required under the governing rules, but only in instances where a court has made a finding that FDV conduct was carried out by that beneficiary towards the deceased member; and
  • referral to deceased estate or a court: legislative amendments to give a trustee the power to pay a death benefit that would otherwise have been paid to a beneficiary under a valid BDBN or as required under the fund’s governing rules to the estate or into a court where the trustee reasonably suspects FDV was perpetrated by that beneficiary towards the deceased member.

The Law Council appreciates the policy objective of ensuring that people who have committed FDV do not benefit from the superannuation death benefits of their victim-survivors. The issue that these proposed reforms seek to address are serious. However, the Law Council is concerned that several of the proposals set out in the Consultation Paper would not achieve this policy objective reliably, consistently, and with procedural fairness to all parties.

A range of views have been expressed by the Law Council’s constituent bodies and Advisory Committees about each of the proposed reforms. While there is unanimous support for the policy goals set out in the Consultation Paper, there is a diversity of opinion as to how these can best be achieved.

The Law Council supports, in-principle, the introduction of a forfeiture-like rule in relation to superannuation death benefits (subject to conditions set out in this submission). However, further careful consideration should be given to the remaining three policy options having regard to the principles and issues raised in this submission.

While the Law Council recognises that there is some variation of views on individual options within the profession (as noted below), the Law Council has not reached a consensus position in favour of any of these options.

In the interim, there would be significant benefit in educating the public about superannuation systems and processes. Many Australians falsely assume that superannuation will simply form part of their estate, and do not realise that death benefit distribution is largely left to trustee discretion. In the Law Councils view, the community would benefit from education on the superannuation framework, as well as estate and family planning—including the broad range of issues to which one should turn their mind, such as tax implications, property and ownership structures.

^{1 Treasury, Preventing perpetrators from accessing victims’ super death benefits (Consultation Paper, March 2026).
2 Ibid, 3.}

Last Updated on 19/06/2026

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