The Supreme Court (TS) has recognized the right to collect a reinforced orphan’s pension to the child whose father or mother who is still alive has had parental rights suspended by a judge after seriously and repeatedly neglecting his or her obligations as a parent. In this way, the High Court allows adding to the orphan’s pension the 52% corresponding to widowhood that no one is collecting, so that the benefit reaches 72% of the regulatory base even if the beneficiary is of age when the parent dies.
The Supreme Court has ruled in favor of an orphan whose mother died in March 2021, after a Court of First Instance had suspended the father’s exercise of parental authority in 2016 for repeatedly neglecting his parental obligations.
He dies while teleworking due to a heart attack and the mutual insurance company says that it is not a work accident: justice agrees with the widower and he must take care of the pensions
At the age of 58, he achieved a lifetime pension of 2,252 euros after working in a metallurgy workshop suffering from lower back pain, panic attacks and anxiety, the TSJ endorses him
As the ruling explains (available in the Judiciary), Social Security had recognized him an orphan’s pension of 20% of the regulatory base, although he had requested that the 52% corresponding to the widow’s pension that the surviving parent did not receive be added. Social Security said no, arguing that neither the deprivation nor the suspension of parental rights could make it equivalent to absolute orphanhood (when both parents die) required by the norm to access the increase.
Circumstance analogous to absolute orphanhood
The ruling is based on article 38 of Decree 3158/1966, which provides for the increase of the orphan’s pension when there is no beneficiary of the widow’s pension. The norm expressly mentions two circumstances analogous to absolute orphanhood, when the orphan whose living parent has been convicted of gender violence and the orphan of only one known parent.
The Supreme Court applies the doctrine established in STS 700/2022, which recognized the right to increase the pension when the surviving parent had been deprived of parental rights. The court now extends this criterion to cases of judicial suspension of parental authority, considering that the difference between both figures does not respond to a different treatment of parental non-compliance, but rather to the judge’s assessment of which measure was most beneficial for the minor.
The High Court indicates that “the final interpretation of article 38 of the aforementioned Regulation (…) allows the inclusion of both absolute orphanhood and other analogous circumstances that cause a situation of comparable need.” In this sense, it concludes that suspension due to serious and repeated breach of parental duties constitutes an analogous situation because no one receives the widow’s pension and the neglect of the surviving parent is proven.
The age of majority does not extinguish the right
Social Security alleged that parental rights had been extinguished when the child turned 18, which rendered the previous suspension void. The High Court rejects this argument and remembers that the orphan’s pension is not reserved for minors: children under 21 or 25 years of age can also collect it if they do not work or their annual income does not exceed the minimum interprofessional wage.
The Supreme Court adds that the situation of need “does not change when the orphan turns 18 because parental neglect does not disappear” upon reaching that age. In this sense, remember that article 110 of the Civil Code obliges parents to care for and support their children even if they do not have parental authority, a duty that remains on paper when a ruling accredits abandonment equivalent to that of an absent parent.
The court invokes STS 791/2024, of May 30, which already applied this doctrine to an orphan over 25 years of age with a 71% disability, to whom it recognized a pension of 72% of the regulatory base even though her father was still alive and did not meet her expenses.