What are the differences between separation and divorce if you are going to collect the widow’s pension?

When it comes to accessing the widow’s pension, becoming widowed while separated is not the same as being divorced for Social Security. The widow’s pension is intended to protect spouses, de facto partners or ex-spouses after the death of the other person, as long as the deceased person has contributed for a minimum amount of time (unless they died by accident). Social Security allows people who are de facto separated (those who only stopped living together) to collect the entire pension, but in the case of people separated with a sentence and divorced people, they can only access it if they collected a compensatory pension.

Differences between separation and divorce before the law

Separating and divorcing, although they may seem the same, are not the same under Spanish law. Knowing how to differentiate them is key when accessing the widow’s pension.

• To separate in fact is to stop living together without having to go through the court or the notary, so the marriage bond continues as is.
• The legal separation (separation with papers) is signed before a judge or, since 2015 and if there are no minor children, it can be done before a notary, where a regulatory agreement is established that distributes the use of the house, custody, food and, if appropriate, a compensatory pension (as established by article 90 of the Civil Code). In this situation, the couple is still married, so neither of them can remarry.
• Divorce ends the marriage and each person can remarry or form a de facto couple.

In the case of getting back together, the situation also changes. In the case of separation, it can be reversed if both parties communicate it to the court or notary and register it in the Civil Registry, so that “seniority” is maintained. In the case of divorce, this is not the case, since they may be husband and wife again when they get married, but they will start from scratch.

Requirements to collect the widow’s pension after a separation or divorce

In widow’s pensions, when there is a separation or divorce, Social Security looks at what situation the widow was in when her husband died, and three situations can arise:

• If she was de facto separated, without a sentence or deed, she is still married in the eyes of the law, so she will receive the entire pension. In this case, only the husband’s contribution will be counted and they will not be able to demand compensatory pension from him nor will he have to share anything with a subsequent partner, since a married man cannot form a de facto couple that is valid for Social Security (as explained in article 221.2 of the General Social Security Law).
• In the case of being separated by a ruling by a judge or before a notary, the widow’s pension can be accessed if a compensatory pension was being collected, which remained in force when he died, and as long as she had not married or formed a de facto couple after the breakup. In this case, the widow’s pension cannot be higher than the compensatory pension. That is to say, if the widow’s pension that would be paid is 780 euros per month and the compensation was 300, she receives 300.
• In the case of being divorced, the same requirements will be requested as for legally separated people. The difference is that, if the deceased person remarried (or formed a common-law relationship), the widow’s pension would be distributed based on the years of cohabitation, but with the condition that the current widow keeps a minimum of 40% and the ex-wife can collect a maximum of 60%, always with the limit of the compensatory pension.

It must be clarified that it is not necessary for the agreement to say “compensatory”, since the Supreme Court issued a ruling in 2014 (you can read the note from the General Council of the Judiciary) in which he stated that what really matters is what that money was used for. That is to say, pay ex-wife’s mortgage it does count as compensatory, but keep the use of the house No.

Now, there are two exceptions. On the one hand, women who suffered gender violence when they separated or divorced receive compensation without compensation. On the other hand, whoever broke up before 2008 has a transitional rule than the pound if the marriage lasted at least ten years and no more than ten passed until death (with children in common or over 50 years old), or if she is 65 years old or older and was married for at least 15.

Furthermore, in the case of being separated with a sentence and returning to your partner, you have to notify the court, because if not, for Social Security purposes you will remain separated even if you lived with him until the end. In fact, this was made clear by the Supreme Court with a woman who separated in 2012 without compensation and then cared for her dependent husband until his death.

De facto couples and widow’s pension

In order for de facto couples to be able to collect the widow’s pension, it is necessary that, if they do not have children together, they must prove that they have been living together for five years and that they have been registered in the registry of couples, or constituted before a notary, at least two years before death.

Now, in the case of having children together, from October 21, 2026 It is enough to have lived together for two years, proven by the registryas regulated by the Royal Decree-Law 31/2026 (Congress still has to approve it).

In the event that the couple broke up before death, almost the same thing happens to the survivor as to the divorced woman, that is, they will only collect if they had recognized compensation or if they suffered gender violence when they broke up (article 221.3 of the LGSS).

How much is collected as a widow’s pension?

The widow’s pension is 52% of the deceased’s regulatory base (the average of their contributions in two years chosen from the last fifteen, or the base of their pension if they were already retired), which will rise to 60% from the age of 65 without another pension or income from work and to 70% if they have family responsibilities and widowhood is their main income.

If you do not reach the minimum pension, Social Security can increase it thanks to the minimum supplement if your other income does not exceed the annual limit, as explained in the guide on How to collect widow’s pension if you have separated or divorced.