A woman will not be able to access the widow’s pension of 2,694 euros per month after Social Security denied it because her de facto partner was not registered nor had the union been formalized in a public document, despite living with her and having two daughters in common. For the Supreme Court, the fact of living together for 9 years or having children together is not enough, since you must comply with the requirements established by the General Social Security Law.
It all begins when Antonieta requested a widow’s pension after the death of her partner, Roque, in October 2021. Social Security denied it when it was understood that her relationship with the deceased “was not one of those that can give rise to a widow’s pension”, as stated in articles 219, 220 and 221 of the General Social Security Law (which can be consulted in this BOE).
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The couple had lived together for almost nine years, they had two daughters together and they also had a date to get married, but the latter could not be because he died earlier. But, for Social Security, this coexistence was not enough, since the couple was not registered in any registry nor had they formalized their union in a public document, as required by the LGSS.
Faced with this situation, Antonieta decided to go to court to demand recognition of her pension.
To access the widow’s pension you must prove cohabitation
After going through the Social Court which ruled in favor of Social Security and, after an appeal, the Superior Court of Justice of Madrid (TSJ) annulled this and ruled in favor of the widow, the case reached the Supreme Court. This again revoked the decision of the TSJ and established that the widow had no right to the widow’s pension.
The key to the ruling is what article 221.2 of the General Social Security Law says, which explains that to access the widow’s pension two requirements must be met. On the one hand, there is stable and uninterrupted cohabitation and, on the other, the formal constitution of the couple through registration in a registry of de facto couples or through a public document issued at least two years before death. This did not occur, so the widow had no right to the pension.
If there is no record or public document, there is no pension
The problem, therefore, is how this formal requirement is accredited, and the conclusion is that without a public record or document, there is no pension. The Supreme Court is categorical in explaining that the law only allows two ways to comply with this formality. The first is through a certification of registration in one of the specific registries of de facto couples, whether regional or municipal.
The second way is through a public document, such as a deed before a notary, in which the constitution of said couple is recorded. Furthermore, the law requires that this formalization, whether it is the registration or the document, has occurred at least two years in advance of the date of death of the deceased.
It is true that the TSJ of Madrid had relied on a ruling from the Contentious-Administrative Chamber that seemed to make this criterion more flexible. But, despite this, the Supreme Court clarifies that this doctrine was “subsequently corrected” by the Contentious-Administrative Chamber itself and that the Constitutional Court has endorsed this requirement.
In the case of Antonieta, neither long cohabitation, nor wedding plans, nor the registration certificate are enough. In other words, the existence of daughters in common does not serve to skip the formal requirement either.
In this sense, the Supreme Court clarifies that the legal reform of 2021 (Law 21/2021, known as the second pension reform) exempted couples with children from the requirement of 5 years of cohabitation, but kept intact the obligation to “prove the constitution of the de facto couple” through the registry or public document, something that this widow did not comply with and therefore, without the right to the widow’s pension whose regulatory basis was set in the 2,694.09 euros.