A woman has managed to continue collecting her widow’s pension along with her retirement pension, with an amount of 3,102.67 euros, after Social Security suspended it considering that both benefits were incompatible. The Superior Court of Justice of Navarra explained that Additional Provision 40 of the General Social Security Law could not be applied, since the widow’s pension had been generated in accordance with the previous regulations, before the beneficiary began to receive the retirement.
As the ruling explains, Lina requested a widow’s pension after the death of her common-law partner in October 2012, and this was approved taking into account the rule of that date (Law 40/2007) that allowed common-law couples to access widowhood. The amount was 835.43 euros per month, but very importantly, it was conditional on income not exceeding 1.5 times the Minimum Interprofessional Wage.
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Later, in 2014, Lina began to collect the contributory retirement pension, the amount of which was 2,060.22 euros per month, which led the Social Security to suspend her widow’s pension, since the retirement exceeded the maximum income limit allowed.
Now, with the introduction of Law 21/2021 (the well-known second pension reform), Lina decided to request in March the replacement of her widow’s pension, which was approved with economic effects from January 1, 2022 and an amount of 1,042.45 euros per month.
Despite this, Social Security not only denied it, but also informed him that he had to return 10,421.56 euros, considering that he had improperly collected the widow’s pension. He explained that this was due to what Additional Provision 40 of the LGSS says, introduced by Law 21/2021, which indicates that the widow’s pension as a de facto couple can only be granted “when the beneficiary does not have a recognized right to a contributory Social Security pension.”
That is to say, Social Security understood that the existence of the retirement pension made the widow’s pension incompatible, even though the latter had been recognized 10 years ago. Not being satisfied, he decided to go to court.
Yes, I had the right to collect two pensions at the same time.
Both the Social Court number 2 of Pamplona and later the Superior Court of Justice of Navarra agreed with Lina. That is, he had the right to make both pensions compatible and not to return the alleged amounts improperly collected.
As the court explains, the key was that the 2022 request was not an “ex novo” pension but rather a rehabilitation of a benefit already recognized in 2012, so the current regulations had to be applied to the causative event and not the 2021 reform. The ruling itself explains that “the plaintiff could not be required to comply with the new requirements” and that “the moment established by the applicable regulations… is the causative event.”
Incompatibility between the widow’s pension and the retirement pension
To understand it better, the question was whether there was incompatibility between widowhood and retirement. On the one hand, Social Security based its suspension on Additional Provision 40 of the LGSS, introduced by Law 21/2021, which in its exceptional regime requires that the beneficiary “do not have a recognized right to a Social Security contributory pension”; and, therefore, he claimed the improper collection of 10,421.56 euros.
In this sense, the TSJ corrects this interpretation, since this provision is a transitional regime for those who could not become widowed before January 1, 2022, “which prevents its application to the present case” because the plaintiff did obtain widowhood in 2012. For that reason “the new requirements could not be required of her”, among them that of not being a contributory pensioner, and that the replacement had to be resolved in accordance with article 174.3 of the LGSS (Law 40/2007), not with DA 40th. Thus, this woman will be able to collect retirement and widow’s pensions with a total amount of 3,102.67 euros.