17Entitlement to a spouse pension on death of transferred pensioner or transferred contributor

17 Entitlement to a spouse pension on death of transferred pensioner or transferred contributor

17 Entitlement to a spouse pension on death of transferred pensioner or transferred contributor

(1) If a transferred pensioner who was receiving a superannuation allowance under the earlier Act immediately before the transfer date dies on or after the transfer date and is survived by a person—

(a) to whom the pensioner was married, or

(b) who was the de facto partner of the pensioner,

at the time when the superannuation allowance first became payable, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4).

(1A) If a transferred pensioner who was receiving a superannuation allowance under the earlier Act immediately before the transfer date dies on or after the transfer date and is survived by an eligible person—

(a) to whom the pensioner was married, or

(b) who was the de facto partner of the pensioner,

for 3 years or more immediately before the death, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4).

(1B) If a transferred pensioner who was receiving a superannuation allowance under the earlier Act immediately before the transfer date dies on or after the transfer date and is survived by an eligible person—

(a) to whom the pensioner was married, or

(b) who was the de facto partner of the pensioner,

for less than 3 years immediately before the death, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4), but reduced on a pro rata basis according to the proportion that the period of the marriage or relationship bears to 3 years.

(2) If a transferred contributor dies before becoming entitled to receive a benefit under this Regulation and is survived by a spouse or de facto partner, the spouse or de facto partner may, subject to subclause (5), elect to receive one of the following benefits—

(a) a benefit consisting of—

(i) a spouse pension in accordance with subclause (4), and

(ii) a lump sum calculated in accordance with clause 14 (5), or

(b) if the contributor had reached 58 years of age when he or she died—a benefit payable in accordance with section 37 of the later Act (benefit at or after early retirement or on death at or after early retirement age), or

(c) if the contributor had not reached 58 years of age when he or she died—a benefit payable in accordance with section 38 of the later Act (benefit on death before early retirement age).

(3) If a transferred contributor who is receiving a pension under this Regulation dies on or after the transfer date and is survived by a person—

(a) to whom the contributor was married, or

(b) who was the de facto partner of the contributor,

at the time when the pension first became payable, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4).

(3A) If a transferred contributor who is receiving a pension under this Regulation dies on or after the transfer date and is survived by an eligible person—

(a) to whom the contributor was married, or

(b) who was the de facto partner of the contributor,

for 3 years or more immediately before the death, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4).

(3B) If a transferred contributor who is receiving a pension under this Regulation dies on or after the transfer date and is survived by an eligible person—

(a) to whom the contributor was married, or

(b) who was the de facto partner of the contributor,

for less than 3 years immediately before the death, then, subject to subclause (5), that person is entitled to receive a spouse pension in accordance with subclause (4), but reduced on a pro rata basis according to the proportion that the period of the marriage or relationship bears to 3 years.

(4) The amount of a spouse pension referred to in subclauses (1)–(3B) is—

(a) if the spouse or de facto partner has not reached 70 years of age, the lesser of—

(i) the maximum total amount that, if received by the spouse or de facto partner, would not, by virtue of clause 17 (5) (a), operate to disqualify him or her as a spouse or de facto partner to whom a spouse pension may be paid, or

(ii) the amount of pension payable at the maximum rate per year shown in column 2 of Schedule 2 opposite the period of service shown in column 1 of that Schedule which is appropriate to the deceased transferred pensioner or deceased transferred contributor concerned, and

(b) if the spouse or de facto partner has reached 70 years of age, the amount of pension payable at the maximum rate per year shown in column 2 of Schedule 2 opposite the period of service shown in column 1 of that Schedule which is appropriate to the deceased transferred pensioner or deceased transferred contributor concerned.

(5) If—

(a) the spouse or de facto partner of a deceased transferred pensioner or deceased transferred contributor is under 70 years of age and is not entitled to receive, or at any time after the transfer date ceases to be entitled to receive, a full Commonwealth pension without any reduction on account of property or income, or both, in accordance with the law of the Commonwealth under which that pension is paid, or

(b) the spouse or de facto partner of a deceased transferred pensioner or deceased transferred contributor has reached 70 years of age and is not entitled to receive a full or part Commonwealth pension,

that spouse or de facto partner is, with effect from and including the transfer date or, as the case may be, the date on which the entitlement ceased, disqualified from being entitled to receive a spouse pension under this clause.

(6) The SAS Board may vary the amount of a spouse pension payable to a spouse or de facto partner (including any amount payable under Part 5) if, having regard to any relevant income or property or both of the spouse or de facto partner and to the provisions of subclause (4) (a), the SAS Board believes it is necessary to make a variation to ensure that the spouse or de facto partner continues to be entitled to receive such a pension.

(7) If a transferred contributor receives a benefit consisting wholly of a lump sum in respect of his or her period of service before the transfer date, no spouse pension is payable to the contributor’s spouse or de facto partner under this clause.

(8) If a contributor under the earlier Act—

(a) has died before the transfer date, and

(b) is survived by a spouse who remarries on or after the transfer date,

the spouse is not, on the grounds of remarriage alone, precluded from being entitled to receive a spouse pension under this clause.

(9) The spouse of a former contributor to the Government Railways Superannuation Account who has ceased to be entitled to receive a prescribed pension under the earlier Act by virtue of having remarried is disqualified from being entitled to receive a spouse pension under this Regulation while the marriage continues to subsist.

(10) If a contributor under the earlier Act—

(a) has died before the transfer date, and

(b) is survived by a person with whom that contributor was living in a bona fide domestic relationship as that person’s spouse,

that person is not entitled to receive a spouse pension under this clause.

(11) The spouse or de facto partner of a deceased contributor under the earlier Act is not entitled to receive more than one spouse pension under this Regulation.

(12) In any case where, but for subclause (11), the spouse or de facto partner of a deceased contributor under the earlier Act would be entitled to receive two or more pensions under this Regulation, the spouse or de facto partner is, subject to this clause, entitled to receive payment of the spouse pension nominated by the SAS Board which, as calculated by reference only to subclause (4), is the higher or highest of those pensions.

(13) For the purposes of subclauses (1A), (1B), (3A) and (3B), a person is an eligible person if—

(a) the person became the spouse or de facto partner of the transferred pensioner or contributor after the transferred pensioner or contributor became entitled to a superannuation allowance or pension, and

(b) the person has or had in his or her marriage or relationship with the transferred pensioner or contributor a child, being—

(i) a child of the eligible person and the transferred pensioner or contributor who was, in the opinion of the SAS Board, wholly or substantially dependent on the transferred pensioner or contributor at any time during the marriage or relationship, or

(ii) a child of the transferred pensioner or contributor who was conceived before and born alive after the death of the transferred pensioner or contributor.

cll 17–20: Am 28.3.2003.