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A widow must return 39,355.26 euros to Social Security in addition to seeing her widow’s pension reduced, after recognizing part of this pension to the deceased’s first wife. The Superior Court of Justice of Andalusia agrees with the National Social Security Institute, which had initially granted the entire benefit to the second wife, but after a ruling, it was discovered that this should be distributed proportionally.
According to the ruling, the woman began collecting the pension in 2015, the amount of which was 1,319.77 euros net, an amount corresponding to 52% of a regulatory base of 2,499.16 euros. The pension was maintained for several years until the deceased’s first wife filed a lawsuit claiming the proportional part of said benefit.
Social Security refuses to grant the widow’s pension in marriages of less than one year if the death is due to a previous common illness and without children in common
Retirees who receive 3,003.94 euros per month as a Social Security pension
Thus, the Social Court number 1 of Almería upheld the first wife’s claim, recognizing her as a beneficiary of the widow’s pension due to gender violence, with an economic effect date of March 1, 2019. With this ruling, Social Security adjusted the woman’s pension and asked her to return 39,355.26 euros in amounts improperly collected. In addition, it reduced the pension, applying the minimum guaranteed percentage of 40%.
Not satisfied, he decided to go to court to avoid returning these amounts, alleging that he acted in good faith and that the error was Social Security’s. In the first instance, the Almería Social Court partially agreed with him, declaring that he should only repay the last three months (899.70 euros) as it was considered a third in good faith.
Social Security appealed and the TSJ of Andalusia said that it had to return everything improperly collected.
Why Social Security requires the money back and what the law says
The Superior Court of Justice of Andalusia was based on article 55.3 of the General Law of Social Security (available in this BOE). The court explains that the current law is strict regarding improper collections and establishes a limitation period of four years “regardless of the cause that gave rise to the improper collection, including cases of review of benefits due to an error attributable to the managing entity.”
The Chamber explained that, with current regulations, there is no room for exceptions based on equity or good faith that previously allowed limiting the return to only three months. But in addition to the pure regulations, the court denied that Juliana acted in complete ignorance of her husband’s situation.
The ruling argues that “it cannot be said that she is a third party in good faith who is ignorant of all the procedural events that have occurred, since at the time when she requested the pension she knew that her husband was divorced.” This fact was clearly stated in the family book provided at the beginning of the file.
To finish the argument and give the Social Security a definitive reason, the ruling highlights that Juliana “was also a party to the judicial process in which the widow’s pension was recognized for the first spouse of the deceased, due to gender violence, in which she was able to express reasons of opposition and appeal the sentence that harmed her.” For all these reasons, the TSJ concludes that the Social Security resolution is fully in accordance with the law, forcing the second widow to repay more than 39,000 euros.