In Spain, widow’s pension is a recognized right for those spouses who have lost their partner. However, in recent years, an important debate has been raised regarding common-law couples and whether they should also be able to access this economic benefit. This entry will analyze the current situation of widow’s pension in Spain and explore the arguments in favor and against its extension to common-law couples. Additionally, we will examine the current legislation and the possible solutions that have been proposed to ensure equality and protection of common-law couples in economic terms after the death of their partner.
Widow’s pension in Spain was initially established to provide economic support to surviving spouses after the death of their legally married partner. However, in today’s society, de facto couples are also a common form of cohabitation and often have a relationship as strong as legally recognized marriages.
For this reason, there was a need to extend widow’s pension to de facto couples, as often these couples also depend on each other economically and suffer a significant loss in case of the death of one member, having contributed the same resources as a married couple to our tax system.
Supporters of extending widow’s pension to de facto couples argue that it is a matter of equality and social justice. They believe that all forms of cohabitation should be recognized and protected by law, especially in such difficult situations as the loss of a loved one. Additionally, they argue that in many cases, de facto couples have built a life together and deserve to receive the same economic support as legally married spouses.
For this reason, the need to extend widow’s pension to de facto couples was raised, since often these couples also depend economically on each other and suffer a significant loss in the event of the death of one of the members, having contributed the same resources as a marriage to our tax system.
Supporters of extending widow’s pension to de facto couples argue that it is a matter of equality and social justice. They consider that all forms of cohabitation should be recognized and protected by law, especially in difficult situations such as the loss of a loved one. Additionally, they argue that in many cases de facto couples have built a life together and deserve to receive the same economic support as legally married spouses.
On the other hand, those who have opposed this extension argue that widow’s pension is specifically intended for legal spouses and that the situation of de facto couples cannot be equated with that of marriages. They claim that marriage implies a legal and formal commitment that is superior and different from that of de facto couples.
Regarding current legislation, currently in Spain de facto couples have the right to widow’s pension, provided that the requirements of articles 217, 219, and 221 of the Consolidated Text of the General Social Security Law, approved by Royal Legislative Decree 8/2015, of October 30, are met.
These articles establish the following requirements:
a) The surviving spouse of any of the persons referred to in article 217.1 shall be entitled to widow’s pension for life, unless any of the extinction causes established by law or regulation occur.
b) Article 217.1 establishes the following persons whose death could trigger the accrual of widow’s pension: Persons included in the General Regime who meet the general condition required in article 165.1, Recipients of temporary disability, risk during pregnancy, maternity, paternity or risk during natural breastfeeding benefits who meet the contribution period, and recipients of contributory retirement and permanent disability pensions.
c) For this, the deceased must be in active status or in a situation equivalent to active status at the time of death and have completed a contribution period of five hundred days within the five years immediately preceding the event causing the pension.
d) This period would not apply if the deceased died due to an accident or a work-related illness.
e) If the death of the deceased resulted from a common illness not occurring after the «marriage» bond, it is required that
the «marriage» had been celebrated at least one year before the date of death, or alternatively that there were common children.
f) This period will not be required if it can be proven that at the time of marriage there had been a period of cohabitation with the deceased, which added to the marital cohabitation exceeds a period of 2 years.
g) Furthermore, the surviving spouse will also be entitled to widow’s pension even if the deceased, at the time of death, was not in active status or in a situation equivalent to active status, provided that he had completed a minimum contribution period of fifteen years.
Additionally, article 221.2 recognizes the situation of a «de facto couple» constituted as: «with a relationship of affectivity similar to that of marriage, by individuals who, not being disabled from marrying, do not have a marital bond with another person or a registered de facto relationship, and can prove, through the corresponding registration certificate, stable and notorious cohabitation immediately upon the death of the deceased lasting uninterrupted for a period of not less than five years, unless there are common children, in which case they only have to prove the constitution of the de facto couple in accordance with the following paragraph».
To do so, the following paragraph states that: «The existence of a de facto couple shall be proved by means of a certification of registration in one of the specific registers existing in the autonomous communities or municipalities of the place of residence, or by means of a public document stating the constitution of said couple. Both the aforementioned registration and the formalization of the corresponding public document must have occurred at least two years before the date of death of the deceased».
Likewise, it is indicated that if the de facto couple is dissolved by the will of the partners, it is possible for the survivor to receive the widow’s pension for life if they have not married or entered into a new de facto relationship and meet the requirements established in said article 219.
In the law, there are some limitations to the receipt of the widow’s pension, and the specific case should be evaluated when it exceeds a potential compensatory pension.
Likewise, it should be noted that women victims of gender violence, recognized as such by court order, prior to the dissolution of the de facto couple, or through the corresponding protection order, are entitled to said widow’s pension.
In summary, it is essential to meet the requirements established in current legislation in order to access the widow’s pension
in the case of de facto couples. It is necessary to highlight the importance of registration in the corresponding register as a valid means of proof and to ensure access to this benefit. Although the lower court and the Regional Court ruled in favor of the applicant, the Supreme Court has established that:
«The solution chosen by the legislator does not consist of a duplicate evidentiary requirement on the same issue, as could be deduced from the confusing wording of the provision, but the two legal mandates refer to as many different requirements: a) the material one, of cohabitation as a stable de facto couple for a minimum of five years; and b) the formal – ad solemnitatem – of its verification that the couple has been constituted as such before the Law and endowed with «an analogous affective relationship to the marital one», two years before the triggering event (in a very similar way to what happens in marriage).
From this, we concluded that «the widow’s pension established by the norm is not in favor of all de facto couples with proven five years of cohabitation, but exclusively for registered de facto couples that have been registered for at least two years before [or have formalized their relationship before a Notary within the same time frame] and also meet that cohabitation requirement; which has led to affirm that the entitlement to the right – pension – only belongs to «legal couples» and not to genuine «de facto couples».»
Therefore, it is crucial to comply with the legal requirements to access the widow’s pension for de facto couples. If you have any questions, do not hesitate to contact Roji Abogados, we will be happy to assist you and provide information on how we work and our fees:
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