A woman has managed to make the widow’s pension and retirement pension to collect a pension of 2,071.29 euros, after social security took the widow’s pension when she understood that there was an incompatibility between both benefits. The Superior Court of Justice of Cantabria explained that the pensions of widowhood and retirement are compatible with each other, except at the time of asking for widowhood.
It all starts when Rosa, requests the widow’s pension and social security is denied by not complying with article 221 of the General Social Security Law. Specifically, their income exceeded the limit of 25% of the sum of their own and those of the deceased during the year before death.
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Now, with the entry into force of Law 21/2021 (the known as the second pension reform, after Law 27/2011), which flexible access to widowhood for de facto couples, Rosa decides to re -request again and this time, they are approved with a amount of 840.87 euros per month. But the problem comes when, months later, he asks for the retirement pension, which was granted with a amount of 1,230.42 euros per month, so adding them charged a pension of 2,071.29 euros.
But when they approved the retirement pension, Social Security suspended him from widowhood. The reason was that both pensions were incompatible. Although Rosa filed a claim to Social Security, she answered that the widowhood recognized to de facto couples in exceptional cases was only possible “when the beneficiary has not recognized the right to contributory pension for social security”, which meant, according to the criteria of the administration, an incompatibility.
Yes had the right to charge two pensions at the same time
Given this refusal, the woman decided to go to the courts and the Social Court number 5 of Santander, that is, that she had the right to collect the widowhood and retirement pension at the same time. This was so, since at the time of the application of the first one had no other recognized pension (this being key in this sentence).
Both the National Social Security Institute and the General Treasury decided to resort to the Superior Court of Justice of Cantabria, but this again gave the reason to the retiree. He explained that incompatibility only operates at the moment of recognition of the widow’s pension, not later, as we have explained in the previous paragraph.
Incompatibility between the widowhood and retirement pension
In this sentence the key or doubt is when the widowhood and retirement pension are incompatible. Well, to respond to this judgment, we must go to the 40th additional provision of the General Law of Social Insurance, introduced by Law 21/2021. This established an exceptional regime for de facto couples whose members had died before January 1, 2022 could access the widowhood pension, although they did not meet the economic requirements before.
Among these exceptional conditions was that the applicant “has not recognized the right to contributory pension for social security” at the time of requesting widowhood. Thus, Social Security interpreted that phrase as a permanent incompatibility and, if a retirement was later recognized, widowhood should be suspended.
Even so, the TSJ corrected that interpretation and explained that the norm speaks in the present (“does not have”), which implies that the condition is only required at the time of the application. Therefore, once the widow’s pension is granted, its perception is not conditioned not to ask for another pension in the future, so that it can be compatible with subsequent retirement.