"Can I break up with my de facto via SMS?"
When it came to $1,120,000 from a Super Binding Death Nomination, either way the court has said, ‘you can't end a de facto relationship over a TXT message' (sent to your sister)’.
Read in this article
- Can you end a de facto relationship by sending a TXT for a super Binding Nomination?
- What you need to know first to understand this sad and unusual situation
- What happened
- Was this TXT sufficient to indicate a relationship break up?
- The outcome
- De facto relationships and their Binding Death Benefits can be equally complicated
- Frequently Asked Questions: BDBNs & Relationship Termination
- Sources & Further Reading
Can you end a de facto relationship by sending a TXT for a super Binding Nomination?
Well first of all this begs the question, Whose your Super Beneficiary?
In a recent Full Federal Court case on appeal (Nguyen v Australian Financial Complaints Authority [2024] FCAFC 77), the Court ruled that a text message alone was insufficient to terminate a de facto relationship immediately before the sender’s death.
What you need to know first to understand this sad and unusual situation
- The vast majority of Australians have Super or an SMSF
- You can have a Life & Disability Insurance premiums paid from your super fund
- You can make a written Binding Death Nomination and make your wishes clear to the Trustee of the Super Fund, who they must pay your super fund balance to, upon your death.
What happened
Mr Corbisiero, who died by suicide, had superannuation entitlements of $1,120,000 as at the date of his death.
- Prior to his death, he had made a binding death nomination in favour of his then de facto partner, Mr Nguyen, directing the trustee of the super fund to pay 100% of his entitlement to Mr Nguyen, in the event of his death.
- Shortly before his death, Mr Corbisiero sent a txt message to his sister via Whats App, stating his wishes.
- This txt message raised a legal question about whether the binding superannuation nomination should still be honoured, leading to a legal dispute over the intended recipient of the death benefit.
Toxicology reports revealed that at the time of sending the text message and at his death, Pino Corbisiero had both cocaine and alcohol in his system.
The message stated (errors original) below:
This is my will and testament as from 1st of September to whom it may concern I want to leave all my property and assets to my family to my brother and sister and my nieces and nephew only and no one else. James receives nothing of my assets all for he has put me in the position or stage of my life where I had enough. Can I also ask my family this only be family thing I want no friends of james to be there what so ever. I am very sorry I Done this but I need peace and hopefully I get that now really sorry but please understand I happier now than before.
Was this TXT sufficient to indicate a relationship break up?
In this case, the only conduct to end the relationship, was the text message sent by the deceased to his sister stating his intention to take his own life.
The appeals court found, this was held not to be conduct sufficient to terminate the de facto relationship between Mr Nguyen and Mr Corbisiero, and therefore the Court found that Mr Corbisiero had not actually taken steps to end his relationship with Mr Nguyen, prior to his death.
The outcome
As the text message was insufficient in ending the relationship, Mr Nguyen was the deceased's spouse as at the date of his death, the non-lapsing binding nomination in favour of Mr Nguyen was valid and consequently, the court affirmed the deceased’s de facto partner was entitled to the death benefit payment. (See SIS regulation 6.21(2A))
The Federal Court ruled in favour of Mr Nguyen, stating he was entitled to the benefit because he and Corbisiero were living together, when the deceased passed away.
“In my view, the textual link between entering into and terminating a de-facto relationship is clear. It is coincident with commencing to live with a person on a genuine domestic basis in a relationship as a couple and ceasing to do so. ... Where, however, there is no such communication, there must, I think, be some other conduct that is apt to stand as a practical manifestation of the intention so formed. A person who tells a third party of his or her intention to end a de facto relationship should not be understood, merely by that communication, to have done so. In my view, termination requires some other conduct inconsistent with the continuation of the relationship…" Justice Snaden
De facto relationships and their Binding Death Benefits can be equally complicated
This appeal courts decision highlights not only the importance of clear demonstrable acts, regarding the status of the de facto relationship at the time of death, particularly as it relates to superannuation benefits, but also as a reminder that as Australians super fund balances increase, so will the parties who may seek access to them.
The Federal Court ruled in favor of Nguyen, stating he was entitled to the benefit because he and Corbisiero were living together when the deceased passed away.
Make your intentions very clear, keep your death benefit nominations up to date make sure your financial advisor knows where your Will document, is and what are your written Super Beneficiary nomination instructions.
Frequently Asked Questions: BDBNs & Relationship Termination
Does updating my Will cancel my old super nomination?
No. This is the single most dangerous misconception in Australian estate planning. Superannuation sits in its own legal jurisdiction. A Binding Death Benefit Nomination (BDBN) is a direct instruction to the Super Trustee. They are legally bound to follow it, even if your Will says the exact opposite. If your BDBN names an ex-partner, they will receive the funds regardless of your Will.
How do I legally end a de facto relationship for my super?
As the case of Nguyen v AFCA [2024] proved, a text message is not enough. To "decouple" legally, there must be conduct inconsistent with the relationship—such as physically moving out or formalizing a separation agreement. If you remain "living together on a genuine domestic basis," the law considers you a couple, and your partner remains a valid "dependant" for super purposes.
What happens if I don't make a binding nomination at all?
If you have no valid BDBN, the decision falls to the Super Trustee’s discretion. They will use their legal powers to identify your "dependants" (spouse, children, or those financially dependent on you). While they may look at your Will for guidance, they are not bound by it. This often leads to significant delays and potential litigation between family members.
Is it true that some super nominations expire?
Yes. You must check if your nomination is Lapsing or Non-Lapsing. A lapsing nomination expires every three years; if it expires, the Trustee regains discretion over your funds. A non-lapsing nomination stays in force indefinitely. In a breakup, a non-lapsing nomination in favor of an ex is a "ticking time bomb" that must be revoked immediately in writing.
Can I nominate my parents or siblings to receive my super?
Under SIS law, you can only nominate SIS Dependants (spouse, children, or those in an interdependency relationship). Parents and siblings usually don't qualify. To ensure they receive the funds, you should nominate your "Legal Personal Representative" (your Estate). This moves the money into your Will, where you can then distribute it to anyone you choose.
Sources & Further Reading
- Superannuation Industry (Supervision) Act 1993 (Cth) s 10 - The primary legislation defining who qualifies as a 'dependant' eligible to receive a superannuation death benefit.
- ATO: Nominating a beneficiary for your super - Official guidance from the Australian Taxation Office on Binding Death Benefit Nominations.
