The Supreme Court establishes that a person cannot collect a widow’s pension if there was judicial separation and there was no compensatory pension, even if they later resumed cohabitation with their spouse. In the ruling, the High Court agrees with Social Security and makes it clear that this reconciliation does not produce effects against third parties if it was not communicated to the court, so the legal situation continued to be that of marital separation.
Article 220 of the General Social Security Law regulates access to a lifetime pension in cases of separation or divorce. The Supreme Court recalls that this provision imposes the unavoidable requirement that the survivor be a recipient of a compensatory pension (or be a victim of gender violence) to be able to access the benefit.
The ruling STS 182/2025 explains the case of Clara and Ernesto, who married in 1998 and legally separated by mutual agreement in October 2012, without establishing any compensatory pension in her favor. Later, they resumed their relationship and lived together again in the same home. In fact, Clara devoted herself completely to caring for her husband when he was recognized as highly dependent and was judicially incapacitated. After Ernesto’s death in March 2020, she applied for a widow’s pension. The Social Security (INSS) denied her because the separation sentence was recorded, she did not receive compensatory pension and they had never informed the judge of their reconciliation.
He went to court and the Superior Court of Justice of Madrid agreed with him. Their argument was that, having resumed their life together, they functioned in practice as a de facto couple, which should grant them the right to a pension. Finally, Social Security appealed this decision to the Supreme Court.
Separate marriage or de facto couple, incompatible legal realities
The Supreme Court explains that the regional court was wrong to assimilate their situation to that of a de facto couple. The Supreme Court is blunt on this point: “in the event of judicial separation, while the marriage bond is in force, a de facto couple cannot validly be established between the spouses.” That is, as long as they remain legally married, they cannot be considered a de facto couple to avoid the requirements of the marriage route.
The High Court confirms that, for the sake of legal certainty, article 84 of the Civil Code requires that both spouses communicate the reconciliation to the judge who ruled on their separation. If this is not done, this resumption of coexistence, no matter how real and prolonged it may be, is “legally non-existent” for the State. The ruling highlights that “the voluntary and commonly accepted continuation of marital cohabitation between two people, who have legally suspended said cohabitation, cannot have a legal effect similar to that of marital cohabitation itself, as long as judicial endorsement is not obtained.”
The Supreme Court agrees with Social Security and points out that, since they did not go to court to annul the separation, legally Ernesto and Clara remained a separated couple. Since she does not have the right to a compensatory pension after the breakup in 2012, the requirement established by the General Social Security Law is not met. For all these reasons, the court annuls the previous ruling and dismisses Clara’s claim, confirming that she does not have the right to receive widowhood for not having formalized the reconciliation papers on time.