A woman has not received a widow’s pension after the death of her partner, with whom she lived for 22 years and had two children together, after Social Security denied it to her because they were not registered as a de facto couple nor had they formalized this in a public document. The ruling issued by the Superior Court of Justice of Asturias explains that this requirement is mandatory and that only registered couples or those with their relationship signed before a notary can be entitled to the pension.
After the death of her husband, with whom she had lived for more than 22 years and with whom she had two children, she requested a widow’s pension. But, despite this stable coexistence and having shared a home for years, Social Security denied it. The reason is that the couple was not registered in any public registry nor had they formalized their relationship in a notarial deed, a requirement required by the General Social Security Law to recognize the benefit.
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The resolution letter explained that “the relationship did not meet the legal conditions necessary to be considered a common-law couple for pension purposes.” This is so, since article 221.2 of the General Social Security Law (can be consulted in this BOE) explains that it is mandatory that the couple be registered or formalized in a public document at least two years before the death of the deceased.
Since this requirement was not met, the administration concluded that there was no right to a pension, regardless of cohabitation or children in common. The woman, as she was not satisfied, decided to go to court.
Unregistered de facto couples do not generate the right to a widow’s pension.
Once in court, both the Social Court number 2 of Oviedo and later the Superior Court of Justice of Asturias (TSJA) agreed with Social Security. Although she claimed that the fact of having lived together for more than 2 years and with two children in common should be enough to access the widow’s pension, the court explained that she did not meet the requirements.
In this sense, the TSJ explains that it is mandatory to comply with the requirement of article 221.2 of the General Social Security Law, without exceptions (as we have detailed above). Furthermore, it adds that “the widow’s pension that the norm establishes is not in favor of all de facto couples with five years of proven cohabitation, but rather for the exclusive benefit of de facto couples registered at least two years previously… and who also meet that cohabitation requirement.”
In this sense, the key to this ruling and why the widow’s pension is denied is that the law distinguishes between having been married or forming a de facto couple with legal recognition, and only in these cases is the right to a pension generated. In this way, since the couple had not been registered or formalized before a notary, the TSJ ruled in favor of Social Security, thus denying their right to a widow’s pension, despite more than twenty years of cohabitation and their children in common.