The Superior Court of Justice of Madrid has denied a woman the possibility of making her common-law partner’s widow’s pension compatible because she was already the beneficiary of a larger contributory retirement pension. The reason for this denial is that in this case, the rule does not allow both benefits to be made compatible, but only to opt for the most favorable one. The woman received a pension of 1,710.74 euros per month and the widowhood that was recognized amounted to 1,152.27 euros per month.
It all begins after the death of her partner in November 2021. The woman requested a widow’s pension and Social Security recognized it, but without financial effects. This is because Additional Provision 40 of the General Law of Social Securityintroduced by Law 21/2021, an exceptional route designed for certain de facto couples who had not previously been able to access this benefit.
This provision expressly requires that the beneficiary “not have a recognized right to a contributory Social Security pension.” In the administrative resolution, Social Security also indicated to him that the retirement pension he was already receiving was incompatible with the widow’s pension and that he could exercise the right of option for the suspended pension. That is to say, Social Security approved the one with the highest value, but if she requested it she could request the widow’s pension, the amount of which was lower.
The woman appealed because she considered that this limitation was unfair and discriminatory, especially because in general the widow’s pension can be collected together with the retirement pension. He also alleged that his situation was comparable to that of a marriage and that he was not able to marry his partner before his death due to administrative problems related to a previous divorce from the deceased.
Both pensions are incompatible
The key to the ruling is that it is not the ordinary widow’s pension regime, but rather an exceptional regime created to regularize situations prior to January 1, 2022 in de facto couples. This route opened the door to recognizing benefits that could not be granted before, but did so by imposing several conditions. Among them, an essential one, that the applicant did not already have another contributory pension recognized.
The court explains that this requirement cannot be nullified. In fact, remember that the provision “does not provide for the possible accumulation of the two pensions” and that what it contemplates is a “reasoned option between incompatible contributory benefits.” That is why it rejects the appeal and confirms that there is no right to add both amounts in this specific case.
That is to say, the difference with other cases is in the moment and in the way by which widowhood is recognized. Generally, retirement and widow’s pensions are compatible, but when the benefit is granted by this exceptional provision for de facto couples, the law itself imposes a requirement of not already having another recognized contributory pension. If this requirement is not met, both cannot be charged at the same time.
For all reasons, the TSJ of Madrid rejects the appeal and confirms the previous ruling. This means that the woman maintains her retirement pension of 1,710.74 euros and cannot pay the widow’s pension of 1,152.27 euros while this legal incompatibility exists, that is, a total of 2,863.01 euros.