A woman has managed to recognize a widow’s pension calculated on a regulatory base of 3,315.80 euros, after social security was set at 2,439.23 euros when considering that the amount of retirement of her husband suspended for working should be maintained. The Supreme Court confirms that the quotes made while the deceased was still active, allowing to opt for the most favorable base.
Everything starts when Lorenza request the widow’s pension After the death of her husband, who had been recognized a retirement with a regulatory base of 2,439.23 euros, although this pension was suspended because she was still working. Apparently, Social Security recognized the widowhood by applying that previous calculation, but not the last quotes of the deceased.
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In the letter of resolution, Social Security explained that the pension had to derive from “the situation of pensioner of the deceased and to calculate the widowhood pension, it is based on the same regulatory base that served to determine the pension from which its spouse was beneficiary”.
Given this situation and seeing that her pension could be harmed, the widow filed a claim to social security, which was dismissed, so she decided to go to court.
He had the right to a higher regulatory base
Both in the first instance the Social Court No. 32 of Madrid and later the Superior Court of Justice of Madrid and finally the Supreme Court, all gave the widow reason. That is, they recognized that the regulatory base had to be 3,315.80 euros and not 2,439.23 euros, since her husband had continued to quote while she had suspended retirement to continue working.
In this sentence the key or doubt is whether the contributions made by the deceased while the retirement pension had suspended can be used to calculate a higher regulatory base in the widow’s pension. To respond, the Supreme Court went to article 8.3 of Royal Decree 1132/2002 (that can be consulted in this boe), which regulates the effects of the quotes carried out after the suspension of retirement within the framework of flexible retirement.
The rule says that, in the event of death, the beneficiaries of death and survival benefits “may opt for those calculated from the active situation of the deceased or, where appropriate, from the situation of pensioner of the same.” Social Security, however, had interpreted that the initial regulatory base of the recognized retirement should be maintained, even if it was suspended, without taking into account the subsequent contributions.
Thus and for everything explained, the Supreme Court corrects this criterion and confirms that the norm allows the beneficiaries to choose the most favorable option. In this way, the quotes made by the deceased while working with suspended retirement do count to recalculate the regulatory base of the widowhood pension, which in this case allowed to raise it from 2,439.23 to 3,315.80 euros, always speaking of the regulatory base (not of the final amount of the pension).