A woman has made the Superior Court of Justice of the Basque Country recognize her right to compatible the retirement pension with that of widowhood to increase her pension by 520.99 euros per month, after the Social Security denied the provision of widowhood by considering that she was incompatible with the retirement. The TSJ explains that, in cases of gender violence, both pensions are compatible under article 220 of the General Social Security Law
Esther requested the widowhood pension after the death of his ex -husband and social security was approved recognizing 52% of the regulatory base of 1,713.30 euros, but “without economic effects, since it was incompatible with the retirement pension that it perceived from 08/01/2013, the latter being of greater amount.”
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A woman loses the widow’s pension for not being able to collect it with the retirement by being incompatible with a divorce prior to 2008: Justice supports the Social Security decision
To justify this incompatibility, Social Security told him that 13th of the General Social Security Law was due to the transitional provision, which explains that there will be no right to widowhood if another public pension is already perceived.
Yes had the right to charge two pensions at the same time
Because not after submitting a claim, the woman did not give her right to go to court. Thus, in the Social Court No. 7 of Bilbao, in July 2024, he dismissed his lawsuit, that is, he did not prove him right, understanding that gender violence was not credited and that, therefore, incompatibility was maintained. The magistrate explained that “both the complaint for aggressions and the separation that occurred between the spouses does not prove that there was really a determining situation of such gender violence.”
The widow was still not satisfied, so she decided to go to the Superior Court of Justice of the Basque Country where, this time, they proved her right. The Chamber explained that there were enough evidence to prove that he had been a victim of gender violence, recalling that “according to article 220.1 of the General Social Security Law, it is possible by divorce ”.
Therefore, the Court revoked the judgment of instance and declared that Esther was entitled to collect the widowhood pension together with the retirement, recognizing an amount of 520.99 euros per month in 14 payments, to share with the other widow of the deceased.
Incompatibility between the widowhood and retirement pension
In this judgment, the key was to determine when the widowhood and retirement pension are incompatible. Social Security had applied the 13th transitory provision of the LGSS, which remains in force and that requires not having recognized another public pension to access widowhood in the exceptional assumptions it regulates. Based on that rule, the INSS understood that Esther could not charge it by being charging a retirement pension.
Now, the Superior Court of Justice corrected that interpretation. He explained that, in cases of gender violence, the exception of article 220 LGSS is applied priority. The Chamber stressed that “it is admissible the concurrence of a survival benefit by means of art. 220 LGSS that claims the plaintiff. And, this means declaring the right of access to the benefit by urging route.”
Therefore, Esther does have the right to compatible the retirement pension with that of widowhood, although with the corresponding regularization with respect to the complement to minimums.