The Supreme Court denies widowhood to a woman with four children and more than 17 years of cohabitation for not being registered as a de facto couple and fifteen days later a decree changes the law

The Supreme Court has denied a widow’s pension to a woman who, despite living with her partner for more than 17 years and having four children together, because they were not registered as a de facto couple nor had they signed it before a notary. The curious thing is that this sentence is from October 6; Fifteen days later, the decree that removes this requirement for couples with children in common came into force, so you can request it again, but you will not be able to collect the arrears.

According to the ruling (which can be read at this link from the Judiciary), the couple shared a house in a town in Madrid “since at least 2003” and as a result of that relationship they had four children together, born between 1987 and 1999. The two were single and were never registered in a registry of common-law couples. The man died on June 1, 2021 and she, faced with this situation, asked Social Security for a widow’s pension, which was denied.

The reason is that, according to article 221 of the General Social Security Law, it requires couples who are not married to be registered in a registry, or to have signed it before a notary, at least two years before death, whether or not they had children.

The woman went to court and, although at first they refused to give her the pension, later the Superior Court of Justice of Madrid agreed with her when it understood that the decisive factor was the children in common. Thus, they recognized a pension with 52% of a regulatory base of 1,265.35 euros (about 658 euros per month) from the day of death, and Social Security, not being satisfied, decided to take the case to the Supreme Court.

Common children were not exempt from registration

The Supreme Court annuls the ruling of the TSJ and remembers that it has been saying for years that cohabitation can be proven in many ways, but that the de facto couple only exists for Social Security if it is registered or appears in a public document, and that the law at this point “leaves no room for a different reinterpretation.” He adds that this criterion must be maintained for “obvious reasons of legal certainty.”

The magistrates explain that the 2021 reform has already removed from couples with children the obligation to demonstrate five years of cohabitation, but that it “maintains the configuration of the formal requirement”, that is, registration. In this way, the woman was left without the pension that the Madrid court had recognized her more than a year and a half before. Add that a day later, the Supreme Court resolved the same thing with another woman who had lived with her partner since 2003 and had a daughter with him.

Now, on October 21, fifteen days after the ruling, Royal Decree-Law 31/2026 came into force, which among other things modifies that article 221 and establishes that for couples with children in common “the only requirement of a stable and notable coexistence for a period of at least two uninterrupted years will be required”, demonstrated with the registry and without registration or notary.

The decree also remembers those who lost their partner before that date, to whom it gives a period of twelve months, until October 2027, to request the pension. The rule does not leave out those who lost in court, so, with what the sentence considers proven (four children and the same house since 2003), this woman’s case would fit if she proves that cohabitation with the registry.

This pension is charged “from the first day of the month following the request,” so no arrears will be charged for the time prior to the new request. Furthermore, the decree is in force, but the Permanent Deputation of Congress still has to vote on it this month and, if it does not approve it, it will be repealed.