48ABADeceased pensioner survived by more than one spouse

#### 48ABA Deceased pensioner survived by more than one spouse (1) In this section: > eligible child, in relation to a deceased pensioner, includes a person who would, if the deceased pensioner had been a retirement pensioner for the purposes of the Superannuation Act 1976 immediately before his or her death, be an eligible child in relation to that retirement pensioner within the meaning of that Act. > spouse, in relation to a deceased pensioner, means: (a) a person who: (i) survives the deceased pensioner; and (ii) would, if the deceased pensioner had been a retirement pensioner for the purposes of the Superannuation Act 1976 immediately before his or her death, be a spouse in relation to that person within the meaning of that Act; or (b) a widow or widower of the deceased pensioner who is entitled to a pension under section 47. (2) If a deceased pensioner is survived by more than one spouse, a pension is only payable under section 47 or 48 (including under the section because of section 48AB) to a person in accordance with an allocation made under subsection (3). (3) The Commissioner must, subject to subsections (4), (5) and (6) of this section and subsection 48AB (3A), and having regard to: (a) the respective needs of the surviving spouses; and (b) the respective needs of any eligible child or eligible children of the deceased pensioner; and (c) such other matters as the Commissioner considers relevant; allocate any pension payable under section 47 or 48 (including under the section because of section 48AB) among all the persons who are entitled to such a pension. (4) The amount of pension payable to each person must not exceed the applicable percentage of the annual rate of pension payable to the pensioner at the time of the pensioner’s death. (5) For the purpose of subsection (4), the applicable percentage in relation to a pension payable to a spouse of the deceased pensioner, is: (a) if paragraph (b) does not apply: (i) if there are no eligible children of the deceased pensioner or the spouse who are in the custody, care and control of the spouse—67%; or (ii) if there is one such eligible child—78%; or (iii) if there are 2 such eligible children—89%; or (iv) if there are 3 or more such eligible children—100%; or (b) if the pensioner elected that section 26 should not apply to the pensioner: (i) if there are no eligible children of the deceased pensioner or the spouse who are in the custody, care and control of the spouse—54%; or (ii) if there is one such eligible child—65%; or (iii) if there are 2 such eligible children—76%; or (iv) if there are 3 or more such eligible children—87%. (6) For the purpose of subsection (4), the applicable percentage in relation to a pension payable to each eligible child of the deceased pensioner who is not in the custody, care and control of a spouse of the deceased pensioner is: (a) if there is only one such eligible child—45%; or (b) if there are 2 such eligible children—40%; or (c) if there are 3 such eligible children—30%; or (d) if there are 4 or more such eligible children—100% divided by the number of the children. (7) If: (a) the Commissioner allocates pensions payable in respect of a deceased pensioner under subsection (3); and (b) there is an eligible child or there are eligible children of the deceased pensioner (whether or not in the custody, care and control of any of the surviving spouses); the Commissioner must determine the part of the pensions that is attributable to each eligible child. (8) If a pension is payable in accordance with an allocation under this section, the Commissioner may, having regard to: (a) the respective needs of each person to whom the allocation relates; and (b) such other matters as the Commissioner considers relevant; vary that allocation from time to time. (9) For the purposes of applying the definitions of eligible child and spouse in subsection (1) in relation to a deceased pensioner who died before the day on which Schedule 1 to the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced: (a) the amendments of the Superannuation Act 1976 made by that Schedule do not apply; and (b) the Superannuation Act 1976 as in force immediately before the commencement of that Schedule continues to apply.