Div 296 may mean your estate pays tax on assets your beneficiaries never receive

For members with balances above $3 million, Division 296 imposes an additional 15% tax on realised earnings attributable to the excess, rising to 30% for that portion of the balance above $10 million. Much of the early planning response has focused on the obvious levers: investment strategy, balance management, and whether to elect a CGT cost base reset within an SMSF.

Far less attention has been given to what happens on death.

In certain circumstances, the Division 296 liability sits in the estate, while the super that generated it passes directly to beneficiaries. The result is simple but potentially fraught: one group can receive the asset, while another inherits the tax bill.

That is not a fringe case. It is the ordinary outcome where binding death benefit nominations and wills have not been considered together - which is to say, in a large number of Australian estates.

When the tax and the asset decouple

Death is not an exemption from Division 296. In the year a member dies with a balance above $3 million, a liability is assessed on realised earnings from 1 July to the date of death. That liability is personal to the deceased, meaning it becomes a debt of the estate.

The complication is that superannuation does not automatically pass under a will. It sits outside the estate, directed instead by a separate document, often signed years earlier and rarely revisited.

A binding death benefit nomination directs the trustee where to pay the member's benefits on death - to a spouse, child, dependant, or back into the estate. Without one, the trustee decides, which may not reflect the member's intent.

Where there is a valid nomination, super can pass directly to beneficiaries from the fund, bypassing the estate entirely. When the super beneficiaries and the estate beneficiaries are different people, the tax and the assets decouple. The Division 296 liability stays with the estate. The super goes elsewhere.

The system has not changed who receives the wealth. It has changed who pays the tax.

When the mismatch becomes real

Consider Robert, 71, with $4.2 million in super and an estate - primarily an investment portfolio - worth $2.3 million. He remarried a decade ago. His binding death benefit nomination, never updated, directs his super to his two adult children from his first marriage. Linda, his current wife, inherits their jointly held assets, including the family home, and is the sole beneficiary of his estate under the will.

Robert dies in November. A Division 296 assessment - say $35,000 - is raised against the estate.

His super passes directly to his adult children. Linda inherits the estate and effectively the Division 296 tax bill. Before the executor can finalise the estate and distribute assets to Linda, the ATO must first calculate and issue the Division 296 assessment. That process can take months.

So Linda waits. Meanwhile, Robert's children have already received their superannuation.

The cost is not just the $35,000. It is the perception that one set of beneficiaries received their inheritance promptly and in full, while another waited and paid a tax bill on assets they never received. In estates where relationships are already complex, that perception can do lasting damage.

This is not unusual. Blended families, outdated nominations, and wills that do not align with structures are common. Division 296 has simply made the cost of that misalignment harder to ignore.

What was always there, now amplified

It is worth addressing a misconception that has attached itself to Division 296. Some commentary has described it as introducing a death tax on superannuation. It has not. Australia has had a death tax regime on super for decades.

Death benefits tax of up to 17% applies to the taxable component of super passing to a non-dependant, typically adult children. The untaxed element - often including life insurance proceeds - is taxed at 32%.

Division 296 adds another layer. The issue is how that tax is applied. In most cases, death benefits tax is withheld by the fund before payment. Division 296 does not work that way: it is assessed to the deceased member and becomes a liability of the estate. The assets and the tax bill can end up in different hands.

Spouses, children and trade-offs

Where super is paid to a surviving spouse, death benefits tax is not payable and the benefits can generally remain within the super system as a pension. Earnings on those assets underlying the pension are tax free, and the capital continues to benefit from the concessional environment.

A secondary consideration is that the death of one spouse may push the survivor's balance above $3 million, bringing them into the Division 296 regime. That is not a reason to avoid spousal nomination, but it does require modelling.

For non-dependants such as adult children, the taxable component is generally taxed at 17%, and any untaxed element at 32%. On multi-million dollar balances, the impost is material.

This is where strategies such as withdrawal and recontribution remain relevant. By progressively converting taxable components to tax free, the eventual tax burden on beneficiaries can be reduced.

The case for the estate: testamentary trusts

When super flows into the estate, it can be distributed through a testamentary trust - a discretionary trust created by the will that comes into effect on death. This structure offers both tax and asset protection advantages.

The key feature is flexibility. The trustee can distribute income each year across a defined group of beneficiaries, including their spouse and children. Unlike ordinary trusts, income distributed from a testamentary trust to minors is taxed at adult marginal rates rather than punitive rates of up to 47%.

A child with no other income can receive up to $18,200 tax free. Four grandchildren in that position means $72,800 of income distributed annually without tax. Over a decade, that is more than $700,000 distributed tax free across a family group.

There is no universal answer. For a surviving spouse, direct nomination is often appropriate. For adult children, particularly where flexibility, tax efficiency and asset protection are priorities, the estate and testamentary trust structure may deliver a better outcome.

Division 296 has not created a new problem. It has made an existing one more expensive to ignore.

Rachael Rofe is an estate planning lawyer and wealth transfer specialist. She advises families and their advisers on estate planning, superannuation succession, and philanthropic structures.