A woman has not been able to make the widow’s pension compatible with the retirement, after the Social Security denied the first to understand that both benefits were incompatible. The Superior Court of Justice of Andalusia explained that the widowhood pension does not disappear, but forces to choose between one or the other when a retirement is already perceived.
Everything begins when Carmela requests the widow’s pension after the death of her ex -husband in April 2020. Social security was recognized, but told her that she should choose between this benefit or the retirement pension that she had already been charging since 2019, since both are incompatible according to what collects the 13th transitory provision of the General Social Security Law.
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As he said nothing, Social Security proceeded to deny him that of widowhood. The reason was that, although it met the age and duration of marriage, the norm also requires not being entitled to another public pension, which in its case was not fulfilled when it was already retired.
Given this situation, Carmela decided to go to court to claim the recognition of the right to widowhood, arguing that it should be compatible with the retirement pension and that incompatibility only affected simultaneous perception, not the right itself.
He had no right to collect both pensions at the same time
Both the Social Court number 4 of Córdoba and later in a appeal of supplication the Superior Court of Justice of Andalusia gave the reason to Social Security. Both courts agreed that there was a right to the widow’s pension, but that this was incompatible with the retirement that he already perceived since 2019, so he had to opt for one or the other.
The key to the sentence is in the interpretation of the 13th transitory provision of the General Social Security Law (that can be consulted in this boe), which demands that, in divorces prior to 2008 and with more than ten years between rupture and death, the applicant “does not have the right to another public pension.” In this case, Carmela was already a retirement pensioner at the time of asking for widowhood, which directly activated incompatibility.
Incompatibility between the widowhood and retirement pension
It is true that other sentences allowed to compatible the widowhood pension with those of retirement for example, in the judgment of the Superior Court of Justice of Cantabria That allowed another woman to make widowhood and retirement, the key was that, at the moment of asking for widowhood, another pension had not yet recognized. Therefore, the judges understood that they could enjoy both.
On the other hand, in the case of Carmela, when he went to Social Security, he was already a retirement pensioner. According to the interpretation of the 13th transitory provision, that circumstance prevented him from simultaneously perceiving the two pensions, although he was recognized the right to opt for one of them. In other words: he did not lose the right to widowhood, but he could not charge it together with retirement. Now, well, this provision is transitory and limited to very specific cases such as the cases of divorces or separations prior to January 1, 2008.