A woman has managed to recognize a widowhood pension, although she will not be able to collect it because she already receives a retirement of 1,915 euros. Social Security denied the collection as it is both incompatible benefits in the cases of divorce prior to 2008, as collected by the 13th transitory provision of the General Social Security Law, as confirmed by the judgment of the Superior Court of Justice of the Basque Country.
Lourdes married in 1974 with Romero, in which the result of that relationship had two children. After several years these decided to divorce in 1994, where there was no compensatory pension in favor of the wife, only a contribution to the children, which was also subject to the economic capacity of the father.
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A woman loses the widow’s pension for not being able to collect it with the retirement by being incompatible with a divorce prior to 2008: Justice supports the Social Security decision
Retirees charged 2,907.68 euros every month of social security
The years passed and Lourdes began to collect the retirement pension in 2016, with a amount of 1,915 euros. In 2023, his ex -husband died, so he decided to request the widowhood pension, but this was denied by Social Security. The reason alleged in the resolution was that, in accordance with the 13th transitory provision of the General Social Security Law, who divorced before 2008 they can only collect widowhood if they do not have another public pension in force. In this case, when already perceiving a superior retirement pension, widowhood was automatically without charging.
The widow’s pension is incompatible with retirement in certain cases
After submitting a claim that was dismissed, Lourdes decided to go to court. Thus, both in the first instance before the Social Court No. 4 of Donostia-San Sebastián and subsequently the Superior Court of Justice of the Basque Country, gave the reason to Social Security. That is, he recognized his right to the widowhood pension, but without economic effects by having a recognized retirement with a superior amount.
Both explained that, although he met some requirements, he did not meet all those provided for in the 13th transitory provision of the General Social Security Law, since “the plaintiff meets two of the three legal conditions, since she has fulfilled more than 65 years and her marriage lasted more than 15 years, but does not meet the third requirement and is that she does not receive another public pension.” For this reason they did not recognize the pension.
In this sentence we must know that the retirement and widowhood pension are not incompatible, although there are exceptions. The key to this case did not reside in the economic calculation of the benefit, but in determining whether it was possible to collect widowhood despite having another public pension. The TSJ explained that “the appellant fails the requirement of lacking law to another public pension, since according to the event proven room since February 10, 2016, perceives retirement pension.”
In addition, the Court recalled that between divorce (1994) and death (2023) had passed much more than 10 years, which also violated the temporal limit required in the norm: “The plaintiff does not comply in this case the first of the conditions since between the date of divorce and the death happened in 2023 many more than 10 years passed.” Now, this rule applies to divorce prior to 2008, as explained by the norm, which can be consulted in this BOE.
Thus and for everything explained, the Superior Court of Justice of the Basque Country confirms that the norm prevents compatible both benefits. In this way, although the widowhood pension is formally recognized, “it will not have economic effectiveness for being incompatible and of less amount than the retirement pension he perceives”, which in this case leaves the woman only with her retirement of 1,915 euros.