A Portuguese woman lost in court her right to the survivor’s pension (popularly referred to as widow’s pension) that she claimed after the death of her partner. She claimed to have lived with him in a de facto union, but the Supreme Administrative Court (STA) concluded that there was no suitable proof that this relationship existed continuously at the time of her death.
The ruling, dated October 3, 2022 (Proc. 090/15.1BECBR), analyzed the request after rejection by Social Security. According to the court, the certificate issued by the parish council does not have the value of full proof and, in the specific case, the elements presented were not sufficient to prove a common life “in conditions similar to those of spouses”.
What the court found insufficient
According to the ruling, the woman presented documents and testimonies that demonstrated a coexistence prior to her death, but it was not possible to establish that this union was maintained on the date of death. The STA stressed that the evidence must focus on the exact moment of death and not just on previous periods, under penalty of not fulfilling the legal requirement of two years of continuous cohabitation.
The court further explained that merely episodic cohabitation or a shared residence without stability do not constitute a de facto union for pension purposes. The evidence, adds the decision, may be based on testimonies, documents or other admissible means, but it must be objective and convincing.
What Portuguese law requires
In Portugal, de facto union is defined in article 1 of Law no. 7/2001, as the situation of two people who live for more than two years in conditions similar to those of their spouses. For the purposes of death benefits, article 2-A of the same law allows proof of this union by any legally admissible means, and it is common to present a certificate from the parish council accompanied by sworn statements.
According to the legislation, “widow’s pension” is the designation used for the non-contributory regime, while the expression “survivor’s pension” applies to the general Social Security regime and the convergent Caixa Geral de Aposentações regime.
Where and how to order
Survivors’ pension requests are addressed to Social Security when the deceased was a private sector worker and to Caixa Geral de Aposentações in the case of public employees. Since the entry into force of Law No. 23/2010, it is not necessary to prove economic dependence to access the pension, simply proving the de facto union in a continuous and lasting manner.
When the right ceases
The law provides for the termination of the pension if the beneficiary marries or enters into a new de facto union. In the general regime, this provision is contained in article 41 of Decree-Law no. 322/90, and, in the regime, in article 47 of the Survivors’ Pensions Statute.
The final decision
The STA confirmed the rejection of the request and understood that, without objective proof of the de facto union at the date of death, there is no place for recognition of the right to a pension. The court emphasized that the board’s certificate may be one of the elements, but it is never sufficient in itself to prove the legal existence of the relationship.
The decision reinforces that the recognition of a de facto union, for the purposes of a survivor’s pension, requires concrete and current proof, reported at the time of death, and not just evidence of coexistence in previous years.
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