See the QWYN case above about the question whether something is a complying pension under the superannuation law and the recently finalised ATO TR 2013/5 has provided guidance on the ATO's view on what would cause a pension to cease.

In the case of Rushton v CSC [2021] FCA 358 there was no BDBN and no reversionary pension nomination, which would have, if in place, bound the trustee to pay a death benefits lump sum or reversionary pension to the receipient - here the person seeking these benefits was intentionally omitted.

The couple married in February 2005 and they separated in February 2012. In February 2014 an intervention order was granted against the male spouse regarding a claim of domestic violence. The female member expressed the wish that her superannuation entitlement be paidto her estate which left her net estate to her children, with the male spouse given a right to reside in their Queensland home until he re-partnered.

At the time of the female member's death it appears the male spouse was caring for her in Canberra but living separately with his parents also in Canberra. They were separated but not divorced.

The reversionary pension clause in the relevant superannuation trust deed here was discretionary and not binding, so the male spouse had to argue he was eligible as "spouse" within that definition and whether the decision to not grant him that pension was fair and reasonable in the circumstances, including that he would obtain custody of the children and was caring for the family in the last four months of his spouse's life.

7.1.1 The death benefit accrual in relation to a deceased member who is survived by a spouse is payable as a reversionary pension (see Rule 9.3.2). 

The male spouse claimed they were still married and it was unfair and unreasonable that he not receive some of his wife's superannuation benefits as a reversionary pension.

In this case however the decision turned on the definition of spouse, which required them to be living together or dependant (and she was dependant on him not the other way round) regardless of whether they remained legally married. 

Often the spouse definition in a SMSF deed includes persons who are legally married regardless of whether they are living together (so the inverse).

Here the male spouse failed to import the legally married limb from the Acts Interpretation Act 1901 (Cth) because that Act applies to the interpretation of statutes, not trust deeds.

The relevant definitions of "spouse" and "marital or couple relationship" which interact with each other are set out in the Judgment at the link.

The point here being for SMSFs, a reversionary pension is not discretionary and requires the correct documentation to be signed by the member granting in favour of their reversionary beneficiary as well as interaction with the priority clause if there is a BDBN in place that coudl compete with the reversionary pension.

Also a reversionary pension can be invalidated, depending on the relevant SMSF governign rules, if the definition of spouse is broken before the member's death, which could be anything from a written or oral intention to terminate the relationship to only if family law proceedings are commenced.

Similar to the case of Corbisieri above, it is best to enter into and revoke BDBNs and reversionary pensions in writing rather than to rely on evidentiary circumstances as happened in this case as well or the hypothetical applicability of the SMSF governing rules' definition of spouse or other related termination of reversionary pension clause to those circumstances.