A woman, in addition to losing part of her widow’s pension, must return 10,542.12 euros to Social Security, since there was a first wife with equal right to the benefit, according to the ruling of the Superior Court of Justice of Madrid. The National Social Security Institute (INSS), which initially granted her 100% of the pension, later discovered that there was another beneficiary and reviewed the file to adjust the amount and demand the return of the excess amounts paid.
It all starts when Justa decides to apply for a widow’s pension after the death of her husband in January 2021. At this time, Social Security had recognized her a pension whose amount was 52% of a regulatory base of 2,021.58 euros, meaning that she received about 1,100 euros per month. It was like this for more than a year until another wife (named Leonor) also decided to claim part of the pension as she had been the first wife and a subsequent ruling by the Social Court No. 18 of Madrid granted it to her.
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After this event, Social Security proceeded to redistribute the amount between both beneficiaries. Thus, Doña Justa’s pension was reduced to 40% of the regulatory base, remaining at around 462 euros per month. In addition, the administration calculated that it had overpaid 10,542.12 euros, an amount that had to be reimbursed through monthly discounts of 175.60 euros for 60 months.
The pension must be distributed when there are several wives with the right
Not being satisfied with this decision and after a rejected claim, he decided to go to court. In the first instance, the Social Court No. 40 of Madrid agreed with Social Security, meaning that it was right. The woman was still not satisfied, so she filed a petition that was also dismissed by the Superior Court of Justice of Madrid, confirming the initial ruling.
The court explains that the pension review was not an ex officio review, but rather an “act of ordinary management”, that is, a correction derived from a supervening event, such as the appearance of another entitled beneficiary. As the court says and the ruling states, “the managing entity has undertaken an act of ordinary management by which the amount of the recognized benefit is adapted to a circumstance that occurred after its recognition.”
To reach this, the court was based on article 45 of the General Law of Social Security and article 47.1.f) of Law 39/2015, of the Common Administrative Procedure. It also based its decision on the ruling of the Supreme Court Rec. 2318/2008, which distinguishes between acts of review and those of ordinary management, pointing out that the latter are not subject to the regime of article 145 LPL (current 146 LRJS) and that the reimbursement “does not come from the review of the initial act, but from the adjustment of the benefit in the event of a sudden event.”
So for everything explained, the TSJ ended up agreeing with Social Security, so this woman, in addition to losing part of her pension, must return the 10,542.12 euros unduly collected. In this sense, the Chamber adds that the first resolution (the one that granted 100% of the pension to the second wife) was “contrary to the law by recognizing a right that did not correspond to her, given that there was a previous beneficiary with the right to the pension.”
What does the law say when there are two wives entitled to a widow’s pension?
Article 220.2 of the General Social Security Law (which can be read in this BOE) says that, when there are two people entitled to the same widow’s pension, Social Security must distribute the pension between them. This distribution is not equal, but is calculated according to the time that each wife has lived with the person deriving the right.
Thus, each one will collect a percentage of the pension proportional to the years in which they were married or living with the deceased person. Thus, for example, it may be the case that one beneficiary receives 60% of the amount, while the other only receives 40% of the pension.