Court decisions on access to widow’s pensions once again spark debate, especially when the death of a spouse occurs shortly after the marriage. The recent case of a woman who had her right to a widow’s pension recognized is generating discussion about the legal criteria that define the protection of widowers.
Court recognizes right to pension
The Superior Court of Justice of Galicia ruled in favor of Florinda, who became a widow just three months after marrying Augusto. According to the Spanish digital newspaper Noticias Trabajo, the decision contradicted the Spanish National Social Security Institute, which had denied the request because it considered that the death was due to an illness prior to the marriage, which, according to the entity, violated the legal requirements for granting widow’s pensions.
Florinda and Augusto got married on July 22, 2022. Three months later, on October 30 of the same year, Augusto died of pancreatic cancer.
Social Security rejected the widow’s pension, claiming that the couple had not completed one year of marriage nor had children together, two of the conditions set out in the law.
Legal basis in Spain
The decision was based on article 219.2 of the General Social Security Law, which defines that, if the marriage lasts less than a year and there are no children, the pension is only awarded if the death is not the result of an illness prior to the marriage or if a minimum coexistence of two years before the marriage is proven.
Florinda contested the rejection and appealed to the courts, arguing that the decision was unfair. The Vigo Labor Court and, later, the Superior Court of Justice of Galicia confirmed his right to a pension.
Court dismisses suspicion of fraud
During the process, both Social Security and Augusto’s ex-wife claimed that the marriage had been “of convenience”, with the sole purpose of generating the right to a pension. They also argued that the disease already existed before the marriage, according to the same source.
However, the court rejected these claims. He considered that the medical diagnosis was made only after the marriage and that there was no documentary evidence to confirm the prior existence of the disease. The ruling highlighted that “it is not possible to assert, due to lack of proof, that it was a disease that did not occur after the marital relationship”, adding that fraud cannot be presumed without objective evidence.
Weight of proof and the spirit of the law
The court recalled that the survival or non-survivability of a disease must be based on the moment of diagnosis and not on clinical hypotheses. He also highlighted that article 219.2 aims to prevent sham marriages intended to obtain social benefits, but that its application must be prudent and based on concrete facts.
Florinda thus saw her right to a widow’s pension recognized, with the court rejecting the appeals from the deceased’s ex-wife and Social Security itself, cited by .
What if it happened in Portugal?
In Portugal, a similar case would be assessed under Decree-Law no. 322/90, which regulates protection in the event of death in the general Social Security regime. To be entitled to the survivor’s pension, the surviving spouse only needs to prove marriage or a recognized de facto union, there is no requirement regarding the minimum duration of the marriage.
However, article 57 of the diploma allows Social Security to investigate possible situations of fraud, namely marriages celebrated solely with the intention of guaranteeing the right to a pension. As in Spain, the burden of proof lies with the State, which must objectively demonstrate fraudulent intent.
Furthermore, Portuguese law does not exclude the right to a pension if the deceased’s illness predates the marriage, as long as the marital bond is genuine and there is proof of economic dependence or living together.
Therefore, if Florinda’s case had occurred in Portugal, the most likely would be recognition of the right to a pension. Portuguese legislation values the authenticity of the relationship and not the duration of the marriage, guaranteeing protection to the surviving spouse whenever there is no intention of fraud.
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