A pensioner who was collecting a widow’s pension from Passive Classes will have to return 5,808.85 euros to the Administration after getting married in Gibraltar, according to a ruling by the Superior Court of Justice of Madrid. The problem was not the monthly amount, nor a review of income, but a much simpler fact: the new marriage. The General Directorate of Social Security Regulation (DGOSS) declared the amounts collected between December 2021 and March 2022 to be improper and demanded reimbursement.
It all begins when the beneficiary, who had been receiving widowhood, married a Russian citizen on December 1, 2021 in Gibraltar. From there, he maintains that the marriage should not have “practical” effects on his pension until there is actual cohabitation, because, according to his version, that cohabitation could not occur until April 14, 2022. The reason, he explains, is that his wife remained in Russia waiting for the reunification visa, conditional on the recognition and registration of the marriage in Spain, which was completed at the end of March.
But the Administration applies an automatic rule: in Passive Classes, widowhood is extinguished by marriage. Therefore, consider that everything charged from the day of the wedding until March 2022 is an improper payment. The ruling sums it up bluntly: “the widow’s benefit received from that date, December 1, 2021 to March 31, 2022 (…) is an improper payment and reimbursement is appropriate.”
The ruling date is the wedding date, not the start of cohabitation.
The affected person went to court so that effective cohabitation and not the celebration of marriage could be taken as a reference. Despite this, the Superior Court of Justice of Madrid accepted that the cut is the one that sets the rule: “the right to a widow’s pension is extinguished, among other reasons, when the beneficiary marries.”
And, to dismantle the argument of delay due to registration, the Court relies on civil law. Remember that, according to the Civil Code, “a marriage produces civil effects from its celebration”, so that the registration may be relevant for full registration recognition against third parties, but not to deny that the bond exists from the day it is celebrated.
Even when analyzing the jurisprudence that the widower alleged, the court explains that “the obligations of mutual aid and relief do not arise from cohabitation, but from marriage.” However, the TSJ rejects it and confirms that he must return the money collected from the pension in addition to losing it. Furthermore, it imposes costs on the appellant within the limit established in the resolution.
What the law says when widowhood is claimed and a new marriage is contracted (Passive Classes)
You have to know and understand that this case is not about the General Social Security Law, but about the Passive Classes regime. And the rule says that:
- If the beneficiary “marries”, the widow’s pension is extinguished.
- The relevant date is the date of celebration of the marriage, because “it produces civil effects from its celebration.”
- Anything collected after that date can be classified as improper payment and can be claimed via refund.
In other words, if someone receives widowhood from Passive Classes and gets married, it is not enough to think “we still do not live together” or “registration is missing”, since if the Administration understands that the right was extinguished on the day of the wedding, it can claim what was collected from that moment.