De facto unions have been gaining ground in recent decades, following profound changes in family structures and ways of living as a couple. Despite this social evolution, the law continues to require certain formalities for a relationship to have legal effects, especially when economic rights are at stake after the death of one of the partners, such as a widow’s pension.
A recent decision by the Supreme Court of Spain has once again exposed this boundary between social recognition and the legal framework of de facto unions. One woman, Antonieta, was unable to access the widow’s pension of 2,694 euros per month after Spanish Social Security rejected her request due to a lack of formal registration of her relationship with the deceased, despite having lived together for nine years and having two daughters in common.
The Supreme Court was clear: without official registration of the union or public document that constitutes it, there is no right to the pension provided for in the General Social Security Law, reports the Spanish digital newspaper Noticias Trabajo.
Coexistence is not enough
Antonieta and her partner, Roque, lived together for almost a decade, had two daughters and even set a date for their wedding, interrupted by his death in 2021. But, for Social Security, neither the long coexistence nor family ties were enough.
Spanish law requires the formalization of the de facto union, either by registration with a public body or by notarial deed, carried out at least two years before death.
The Labor Court ruled in favor of Social Security, but the Superior Court of Justice of Madrid annulled the decision and recognized the woman’s right to a pension. The case later reached the Supreme Court, which again denied the subsidy, reaffirming that the law is unequivocal: without formalization, there is no right.
Spanish law is clear
Article 221.2 of the General Social Security Law requires two cumulative requirements for a de facto union to generate the right to a widow’s pension: stable coexistence and formal establishment of the relationship. The Supreme Court explained that the law only recognizes two ways of complying with this formality: through public registration or notarial deed.
The ruling also recalls that the 2021 legal reform eliminated the requirement of five years of cohabitation for couples with children, but kept the formalization requirement unchanged, according to the previously cited source.
Neither children nor marriage plans are useful
In Antoinette’s case, neither the existence of daughters in common, nor marriage plans or the certificate of joint residence were sufficient. The Supreme Court highlighted that the absence of a public document makes the right to a pension unfeasible, even when there is a long and proven shared life.
The decision, although controversial, reinforces the importance of legalizing the relationship before the authorities to guarantee future protection, according to .
What if it happened in Portugal?
In Portugal, the situation would have different contours, but the outcome could be similar. Portuguese legislation recognizes de facto unions through Law No. 7/2001, which regulates the rights and duties of unmarried couples.
For legal purposes, it is necessary to prove two years of living together under conditions similar to those of spouses, and this proof can be provided through a joint declaration issued by the parish council of the area of residence.
However, in the case of a survivor’s pension (equivalent to a widow’s pension), Decree-Law No. 322/90, which approves the survivor’s pension regime within the scope of Social Security, requires the surviving member to prove the existence of the de facto union and economic dependence on the deceased. Portuguese Social Security accepts this proof through a declaration from the board and other elements, such as joint accounts or common residence.
The difference is in the formalism
In Portugal, unlike Spain, prior public registration of a de facto union is not mandatory. However, if the couple never made the declaration to the parish council, the survivor may have difficulty proving the relationship. And without this proof, here too the pension application may be refused.
Thus, if Antoinette’s case had occurred in Portugal, everything would depend on the existence of documentary evidence of coexistence. If there was no statement issued by the board or other convincing evidence, Portuguese Social Security could also reject the request, as happened in Spain.
The warning that remains
In both Spain and Portugal, the message is clear: living together for years is not enough to guarantee legal rights after the death of one of the couple. Formalizing the union, even if just through a simple declaration, is the only way to ensure legal protection and access to social benefits, such as the survivor’s pension.
A bitter lesson for many couples who, trusting in the social recognition of their relationship, end up discovering too late that the law does not always follow the wishes of one or the other.
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