Pension beneficiaries should know that they are entitled to simultaneously collect retirement pension and widowhood. The General Law of Social Security allows it because both benefits have different origins, since the retirement is generated by the trades of the worker himself, while the widowhood derives from the contributions of his spouse or died of fact.
Although article 163 of the Law establishes a general principle of incompatibility between pensions of the same regime, specific regulations and jurisprudence have consolidated the compatibility of retirement and widowhood as the norm. Any negative to this compatibility by Social Security can only be based on exceptional assumptions and priced by law, which have sometimes been interpreted restrictively by the Administration.
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A general right with very limited exceptions
The law is clear in allowing compatibility, and cases of incompatibility are very specific. The assumption that has generated the most confusion is the one that affects the de facto couples who hosted an exceptional and temporal route, regulated in the 40th additional provision.
This rule, which was in force for applications submitted until December 31, 2022, allowed access to the widowhood to de facto couples who did not meet the requirements before. Now, he demanded that, at the time of the application, the beneficiary “has not recognized the right to tax pension.” This requirement does not affect the general compatibility rule for the rest of the cases.
A real example: justice confirms compatibility
To understand it better, we can see the real case of Rosa, a woman who achieved justice allowed her to collect a total pension of 2,071.29 euros compatible with retirement and widowhood.
Initially, Rosa was denied the widowhood pension as a de facto couple for exceeding the revenue limits required by article 221 of the General Social Security Law. However, with the entry into force of Law 21/2021, which flexible the conditions, requested it again. As at that time had no other pension, this time it was granted for an amount of 840.87 euros per month.
Months later, he requested his retirement pension, which was approved by 1,230.42 euros. At that time, Social Security suspended the widowhood pension, incorrectly claiming that the exceptional way he had obtained was permanently incompatible with having another pension.
Given the refusal, Rosa went to court. Both the Social Court and the Superior Court of Justice of Cantabria proved him right. Justice determined that the key was that, at the time of requesting widowhood, she had no other pension recognized. The court explained that the law speaks in the present (“does not have”), so the condition is only enforceable at the moment of the application, not permanently. Once granted, the widowhood pension is an acquired right that can be perfectly compatible with a subsequent retirement pension.