The Superior Court of Justice of Madrid (TSJM) has rejected the appeal presented by a Retiree that requested to compatible the retirement pension with that of widowhood After the death of its ex -husband, arguing that, although it complied with the age and duration of marriage, the regulations establish the incompatibility between both benefits. The applicant She was married to the deceased for 38 years and divorced in 1995so he requested to collect both pensions at the same time, but the court explained that could not be incompatiblehaving to opt for one of the two, as explained by the National Social Security Institute (INSS).
According to the sentence, the plaintiff, after the death of her ex -husband, requested the widow’s pension to Social Security, which was denied, based on the Transitional disposition 13th of the General Social Security Lawwhich establishes that this benefit is incompatible with the collection of another public pension, in this case, the retirement that the applicant already received.
The retiree and widow filed a claim to the Social Security claiming that the collection of both benefits did not exceed the limit of the maximum pension and that in his opinion he had the right to receive both benefits at the same time. Even so, social security was dismissed again explaining that current regulations prevents compatibility between both pensions, so it should opt for one of them. Due to this situation, he decided to go to court.
I only had the right to one of the two pensions
In the first view, the Social Court No. 14 of Madrid ruled in favor of Social Security, so he did not give the reason to this retirement. In its resolution, the Court explained that, although the plaintiff complied with the age and duration of marriage, he could not compatible both pensions due to the norm that governs the transitory provision 13 of the General Law of Social Security (LGSS).
This was key, since for this case specifically this regulation says that the divorced people before January 1, 2008 can access the widow’s pension although they do not receive compensatory pension, but with the condition that Do not be entitled to another public pension.
In this case, this pensioner was already charging a retirement tax pension since 2004, so social security allowed him to request the widowhood pension, but without economic effects, since both pensions are incompatible. In other words, that the law does not prohibit access to the widow’s pension, but it forces it to choose between one or the other.
The applicant not as he tried to obtain a favorable ruling and resorted to this decision before the Superior Court of Justice of Madrid (TSJM), but he once again gave the reason to social security. In his ruling, Madrid’s TSJ explained that, although the plaintiff had recognized entitled to the widowhood pension, this It could only be perceived if he chose to give up the retirement pension, something that was not beneficial, since he lost almost 1,000 euros per month. Therefore, the Court denied its application, but left open the possibility that the retiree submit a appeal for the unification of doctrine before the Supreme Court.
How to make the widow’s pension compatible with retirement
Social Security allows to compatible the retirement pension with that of widowhood, but provided that the sum of both does not exceed the maximum pension established each year, as regulated by article 223 of the General Law of Social Security. Now, if it is compatible, why did they deny it?
In this case, they denied it because social security was based on the 13th transitory provision of the LGSS. This regulation says that divorced people before January 1, 2008 can access the widowhood pension, although they do not receive compensatory pension, but only if they do not have the right to another public pension. As a retirement pension already charged, it was denied.
Now, this is not the only reason. The regulations also say that it is incompatible when a widow’s pension is perceived or a non -contributory pension and a retirement pension of the general regime, since the law considers it incompatible. Also, they will be incompatible when the maximum limit of public pensions is exceeded, although a nuance must be made. You can both be charged, but not the surplus, that is, if in 2025 the maximum pension in 2025 is 3,267.60 euros and the sum of both out of 3,800 euros, only 3,267.60 euros can be collected and the surplus 532 , 4 euros cannot be received.