The benefits of your pension fund might not necessarily go to the people you nominate.
Ultimately trustees of pension funds have to consider financial dependency and financial needs over your own wishes when making payments. This is to ensure that your dependants are taken care of and that those who most need financial help receive it. And it supersedes any personal issues you might have with some of your relatives.
Michele Franke, legal adviser of product solutions at Old Mutual, says irrespective of who you have nominated on your beneficiary forms, it is the trustees’ duty to trace any other dependants. This can sometimes come as a shock to a wife who discovers her husband had children he never mentioned.
The trustees then consider the financial dependency of the individuals on the deceased’s salary. In calculating the dependency, factors include the person’s age, the period they would have been dependant upon the deceased and the relationship with the deceased. For example, a spouse is assumed to use two economic shares of the deceased’s salary, children and other dependants (siblings, parents) each one share.
Where a maintenance order exists for a former spouse or children, the amount of maintenance paid is used as the basis for the financial dependency and not the salary. For example, if a woman dies leaving her husband and two young children, the trustees will determine the extent to which the husband was dependant on the wife’s income separately from the children’s dependency.
In the case of a spouse the calculation is based on the remainder of his life and for the children dependency is usually calculated up to the age of 21 or 23 to cater for tertiary education. The husband in this case would receive a larger portion of the death benefit from the wife’s retirement savings than the children.
This calculation can come as a shock to former spouses. If, for example, an ex-husband dies leaving a new wife, and two minor children from a previous marriage, the portion of the death benefit allocated to his new wife could exceed that of the children because she is regarded as a dependant for the rest of her life.
Franke says difficulties often arise when a deceased member leaves behind a wife, but is found to have nominated a girlfriend as his beneficiary. This is not an uncommon occurrence among employees who travel to different cities or countries to work.
In such cases the dependency of the wife and the member’s dependant children from their union would supersede that of the girlfriend to the extent that she was not financially dependant on the member. This means the girlfriend would receive a benefit only if there are funds remaining after calculating the amount required for the economic share of the wife and the children.
Where there are several dependants, but not enough money to meet all of their financial needs, the trustees will apportion the benefit downwards. If, for example, the spouse’s financial need amounts to R50 000, the children’s to R30 000 and there are aged parents who were also dependants and their financial need is R20 000, then R100 000 is required in total. Assuming the death benefit is R50Â 000, the spouse will receive R25 000 (50% of R50 000), children R15 000 (30%) and parents R10 000 (20%).
Franke says, when calculating the benefit payable, the trustees must take into account any other payments due to the dependants from the estate, as was the case with Gowing (see box), and any insurance policies.
To ensure that there are no complications or delays in your fund’s trustees distributing your death benefit, Franke suggests that you include all financial dependants on your nomination form and that you update the form annually. But bear in mind that the trustees are ultimately accountable for determining how the death benefit is distributed.
When things are not as they seem
The pension funds adjudicator (PFA) recently made two rulings regarding beneficiaries.
The first case dealt with customary marriage and whether the deceased was still married when she died. In the case of Mashego & Others v SATU National Provident Fund the pension fund identified her estranged husband as the surviving spouse.
The fund therefore paid out 50% to the husband and 50% to the children, although the children’s names were the only names on the forms and hence they objected.
The adjudicator had to decide whether the deceased had been married at the time of her death because it was a customary union.
The fact that the deceased was separated from her spouse prior to her death does not automatic ally constitute a divorce. In terms of Islamic law the marriage is dissolved when the husband pronounces or issues a Talaq for the third time.
There was no evidence that a Talaq had been issued and therefore the Islamic marriage was still in existence at the time of the deceased’s death. He therefore qualifies as a spouse and dependant even though not nominated.
But the adjudicator found that the trustees had not done a proper job in determining the financial status of the dependants and, although the spouse qualified for a portion of the pension, a 50-50 split did not seem fair to the children. The issue was referred back to the board of trustees.
In another case the PFA overruled the trustees in favour of a relative over dependant children. In the case of Gowing v Lifestyle Retirement Annuity Fund & Others the deceased had nominated his sister as the sole beneficiary although he had two minor children. The trustees awarded the full proceeds of the pension fund to the two children.
But the adjudicator found that the trustees had not considered the fact that the children had already been provided for by a trust and that the sister was a financial dependant.