19Benefits to spouse

19  Benefits to spouse  (a) a person who is entitled to a parliamentary allowance dies; or  (b) a person who is entitled to a retiring allowance (whether or not the retiring allowance is immediately payable) dies; benefits are payable in accordance with this section.  (2) Subject to sections 19AAA and 21AA, if the deceased person is survived by a spouse, there is payable to the spouse an annuity, during his or her life‑time, at a rate ascertained in accordance with subsection (3).  (3) The rate of the annuity referred to in subsection (2) is five‑sixths of the rate of the retiring allowance that would have been applicable to the deceased person if he or she had not died and:  (aa) where he or she died while entitled to a retiring allowance the rate of which was, at the time of his or her death, reduced under section 21B—the rate of retiring allowance to which he or she was entitled was not so reduced;  (a) where he or she died while entitled to a parliamentary allowance—he or she had ceased to be entitled to that allowance on the date of his or her death; and  (b) where his or her period of service was less than 8 years—his or her period of service had been 8 years. 19AAA  Commutation of spouse’s annuity—payment of surcharge liability  (a) a person (the deceased person) dies and:  (i) the deceased person was entitled to a parliamentary allowance; or  (ii) the deceased person was entitled to a retiring allowance, whether or not the retiring allowance was immediately payable; and  (b) the deceased person is survived by a spouse; and  (c) the spouse is entitled to an annuity; and  (d) an assessment is made of the surcharge on the deceased person’s surchargeable contributions for a financial year; and  (e) the spouse becomes liable to pay the surcharge under the assessment in accordance with paragraph 10(4)(ca) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997; the spouse may, within:  (f) 3 months after the assessment was made; or  (g) such longer period as the Trust allows; give the Secretary of the Finance Department a written notice electing to commute the whole or a part of the annuity to a lump sum benefit equal to the amount specified in the election.  (b) must not have the effect of reducing the annuity below zero; and  (4) If a spouse makes an election under subsection (1), the spouse is entitled to a lump sum benefit equal to the surcharge commutation amount.  (5) If a spouse is entitled to a lump sum benefit under subsection (4), the liability to pay that benefit must be discharged by:  (a) paying the amount of that benefit to the Commissioner of Taxation in accordance with the spouse’s request; and  (b) informing the Commissioner of Taxation of the spouse’s request that the amount be wholly applied in payment of surcharge under the assessment concerned. Reduction of annuity  (6) If a spouse makes an election under subsection (1) in relation to an annuity, the rate of the annuity is to be reduced in accordance with the method determined in writing by the Trust in relation to the spouse following consultation with an actuary. The reduction takes effect from the beginning of the day of the election.  (7) A method determined by the Trust under subsection (6) is to be a method that, having regard to:  (a) the age of the spouse when the election is made under subsection (1); and is applicable for the purpose of working out, in relation to the spouse, the rate by which the annuity would have to be reduced to discharge a liability equal to the surcharge commutation amount.  (8) A spouse is not entitled to make more than one election under subsection (1) in relation to a particular assessment. 19AA  Benefits in respect of orphaned children  (1) In the cases specified in this section, benefits for the care and maintenance of eligible children are payable in such manner and subject to such conditions as the Trust determines.  (2) Subject to subsections (2A) and (2B), where:  (a) a person has died or dies while entitled to a parliamentary allowance; or  (b) a person has died or dies while entitled to a retiring allowance (whether or not the retiring allowance was or is, as the case may be, immediately payable); and the deceased person:  (c) was or is survived by a child of the deceased person or of a former spouse of the deceased person, being a child who:  (i) was dependent on the deceased person; and  (ii) is an eligible child; and  (d) was not or is not survived by a person with whom the deceased person had had a marital or couple relationship and who is:  (i) the natural or adoptive parent of that child; or  (ii) the parent of that child because the child is a child of the person within the meaning of the Family Law Act 1975; then, subject to sections 19ABA and 21AA, benefit in accordance with this section is payable in respect of the child.  (2A) Subject to subsection (2B), if the deceased person died while entitled to a retiring allowance (whether or not the retiring allowance was immediately payable), subsection (2) does not apply in relation to a child who was born, or was adopted by the deceased person, either alone or together with another person, after the date on which the deceased person became entitled to the retiring allowance and after the date on which the deceased person attained the age of 60 years.  (2B) Subsection (2A) does not exclude a child from benefit where:  (a) the child:  (i) was born while the deceased person was having a marital or couple relationship with another person; or  (ii) was adopted by the deceased person or the deceased person with that other person during the duration of that relationship; or  (iii) was a child of the deceased person, and that other person, within the meaning of the Family Law Act 1975; and  (b) if that other person had survived the deceased person, that other person would have been entitled to an annuity under section 19.  (3) Subject to subsection (3A), where a spouse entitled to an annuity under section 19 (whether or not the annuity is immediately payable) dies and is survived by a child who is a dependent child of the spouse or of the deceased person and is an eligible child, benefit in accordance with this section is payable in respect of the child.  (3A) Subsection (3) does not apply to a child who:  (a) was born after the date of the death of the deceased person; or  (b) was adopted by the spouse after that date (whether alone or together with another person); unless the child would, in the Trust’s opinion, have been a dependant of the deceased person if the deceased person had not died.  (4) The benefit in respect of an eligible child is an annuity at the rate of the amount per annum ascertained by dividing by 4 (or, if the number of eligible children of the deceased person in respect of whom benefit is payable under this section is greater than 4, by the number of those children):  (a) where the benefit became payable on the death of a person referred to in paragraph (2)(a) or (b)—the amount of the annual rate of annuity that would have been payable to the spouse of that person if that person had died leaving a spouse entitled to an annuity under this Act; or  (c) where the benefit became payable on the death of a spouse referred to in subsection (3)—the amount of the annual rate of annuity that would have been payable to the spouse if she or he had not died and, if the rate of the annuity was, at the time of his or her death, reduced under section 21B, the annuity was not so reduced.  (5) In this section: child, in relation to a person, means a child of the person, including:  (a) an adopted child or an ex‑nuptial child of the person; and  (b) someone who is a child of the person within the meaning of the Family Law Act 1975. deceased person means a deceased person mentioned in paragraph (2)(a) or (b). eligible child means:  (a) a child who has not attained the age of 18 years; or  (b) a child who:  (i) has attained the age of 18 years but has not attained the age of 25 years; and  (ii) is receiving full‑time education at a school, college or university. 19ABA  Commutation of orphaned child’s annuity—payment of surcharge liability  (a) a person (the deceased person) dies and:  (i) the deceased person was entitled to a parliamentary allowance; or  (ii) the deceased person was entitled to a retiring allowance, whether or not the retiring allowance was immediately payable; and  (b) either:  (i) the deceased person is survived by a child of the deceased person or of a former spouse of the deceased person; or  (ii) the deceased person is survived by a spouse, the spouse dies, and the spouse is survived by a child of the spouse or of the deceased person; and  (c) an annuity is payable in respect of the child; and  (d) an assessment is made of the surcharge on the deceased person’s surchargeable contributions for a financial year; and  (e) the person to whom the annuity is payable (the eligible person) (who may be the child) becomes liable to pay the surcharge under the assessment in accordance with paragraph 10(4)(ca) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997; the eligible person may, within:  (f) 3 months after the assessment was made; or  (g) such longer period as the Trust allows; give the Secretary of the Finance Department a written notice electing to commute the whole or a part of the annuity to a lump sum benefit equal to the amount specified in the election.  (b) must not have the effect of reducing the annuity below zero; and  (4) If an eligible person makes an election under subsection (1), the eligible person is entitled to a lump sum benefit equal to the surcharge commutation amount.  (5) If an eligible person is entitled to a lump sum benefit under subsection (4), the liability to pay that benefit must be discharged by:  (a) paying the amount of that benefit to the Commissioner of Taxation in accordance with the eligible person’s request; and  (b) informing the Commissioner of Taxation of the eligible person’s request that the amount be wholly applied in payment of surcharge under the assessment concerned. Reduction of annuity  (6) If an eligible person makes an election under subsection (1) in relation to an annuity, the rate of the annuity is to be reduced in accordance with the method determined in writing by the Trust in relation to the child following consultation with an actuary. The reduction takes effect from the beginning of the day of the election.  (7) A method determined by the Trust under subsection (6) is to be a method that, having regard to:  (a) the age of the child when the election is made under subsection (1); and is applicable for the purpose of working out, in relation to the child, the rate by which the annuity would have to be reduced to discharge a liability equal to the surcharge commutation amount.  (8) An eligible person is not entitled to make more than one election under subsection (1) in relation to a particular assessment. Definition  (9) In this section: child has the same meaning as in section 19AA. 19AB  Benefits payable to personal representative  (a) a person dies on or after 12 June 1978 while entitled to a retiring allowance (whether or not the retiring allowance is immediately payable); and  (b) the deceased person is not survived by a spouse to whom an annuity is payable under section 19 and no benefits are payable in respect of a child or children of the deceased person or of a former spouse of the deceased person; there is payable to the personal representative of the deceased person the amount (if any) by which the greater of the following:  (c) the sum of:  (i) the contributions paid by the deceased person; and  (ii) the Commonwealth supplement in relation to the deceased person;  (d) the superannuation guarantee safety‑net amount in relation to the deceased person; exceeds the sum of any benefits under this Act paid to, or accrued due to, the deceased person before the death of that person.  (1A) If the amount referred to in paragraph (1)(c) is equal to the amount referred to in paragraph (1)(d), subsection (1) has effect as if the amount referred to in paragraph (1)(c) were greater than the amount referred to in paragraph (1)(d).  (1B) If:  (a) on or after the commencement of this subsection, a person dies while entitled to a parliamentary allowance; and  (b) the deceased person is not survived by a spouse to whom an annuity is payable under section 19; and  (c) no benefits are payable in respect of a child or children of the deceased person or of a former spouse of the deceased person; an amount of benefit worked out under subsection (1C) is payable to the personal representative of the deceased person.  (1C) The amount of the benefit referred to in subsection (1B) is:  (a) if paragraph (b) does not apply—the amount by which the greater of the following:  (i) the sum of the contributions paid by the deceased person and the Commonwealth supplement in relation to him or her;  (ii) the superannuation guarantee safety‑net amount in relation to the person;   exceeds the sum of any benefits under this Act paid to, or accrued due to, the person before his or her death; or  (b) if the deceased person’s surcharge debt account is in debit when a benefit under this section becomes payable in respect of the person—an amount equal to the difference between:  (i) the amount referred to in (a); and  (ii) the person’s surcharge deduction amount.  (1D) If the amount referred to in subparagraph (1C)(a)(i) (first amount) is equal to the amount referred to in subparagraph (1C)(a)(ii), subsection (1C) has effect as if the first amount were the greater of those 2 amounts.  (2) Where:  (a) a person dies on or after 12 June 1978 while entitled to a parliamentary allowance or while entitled to a retiring allowance (whether or not the retiring allowance is immediately payable); and  (b) the greater of the following:  (i) the sum of:  (A) the contributions paid by the deceased person; and  (B) the Commonwealth supplement in relation to the deceased person;  (ii) the superannuation guarantee safety‑net amount in relation to the deceased person; exceeds the sum of any benefits under this Act:  (iii) paid to, or accrued due to, the deceased person before the death of that person; or  (iv) paid or payable to:  (A) a spouse of the deceased person; or  (B) a child or children of the deceased person or of a spouse, or former spouse, of the deceased person; an amount equal to the excess is payable to the personal representative of the deceased person.  (2A) If the amount referred to in subparagraph (2)(b)(i) is equal to the amount referred to in subparagraph (2)(b)(ii), paragraph (2)(b) has effect as if the amount referred to in subparagraph (2)(b)(i) were greater than the amount referred to in subparagraph (2)(b)(ii).  (3) In this section, child has the same meaning as in section 19AA.