A woman has managed to obtain a widow’s pension calculated on a regulatory basis of 3,315.80 euros, after Social Security set it at 2,439.23 euros when considering that the amount of her husband’s pension suspended for working should be maintained. The Supreme Court confirms that contributions made while the deceased was still active must be computed, allowing the most favorable basis to be chosen.
It all starts when Lorenza apply for widow’s pension after the death of her husband, who had been granted a pension with a regulatory base of 2,439.23 euros, although said pension was suspended because he continued working. Apparently, Social Security recognized his widowhood by applying that previous calculation, but not the last contributions of the deceased.
In the resolution letter, Social Security explained that the pension should derive from “the deceased’s pensioner status and to calculate the widow’s pension, the same regulatory basis is used to determine the pension of which the deceased’s spouse was a beneficiary.”
Faced with this situation and seeing that her pension could be harmed, the widow filed a claim with Social Security, which was rejected, so she decided to go to court.
He was entitled to a higher regulatory base
Both in the first instance the Social Court No. 32 of Madrid and later the Superior Court of Justice of Madrid and finally the Supreme Court, all agreed with the widow. That is, they recognized that the regulatory base should be 3,315.80 euros and not 2,439.23 euros, since her husband had continued contributing while his retirement was suspended due to continuing to work.
In this ruling, the key or doubt is whether the contributions made by the deceased while his retirement pension was suspended can be used to calculate a higher regulatory base for the widow’s pension. To respond, the Supreme Court turned to article 8.3 of Royal Decree 1132/2002 (which can be consulted in this BOE), which regulates the effects of contributions made after suspension of retirement within the framework of flexible retirement.
The rule says that, in the event of death, beneficiaries of death and survival benefits “may choose to have them calculated from the deceased’s active status or, where appropriate, from his or her pensioner status.” Social Security, however, had interpreted that the initial regulatory basis for recognized retirement should be maintained, even if it was suspended, without taking into account subsequent contributions.
Thus and for everything explained, the Supreme Court corrects this criterion and confirms that the rule allows beneficiaries to choose the most favorable option. In this way, the contributions made by the deceased while working with the pension suspended do count to recalculate the regulatory base of the widow’s pension, which in this case allowed it to be raised from 2,439.23 to 3,315.80 euros, always speaking of the regulatory base (not the final amount of the pension).