A Spanish widow managed to have her widow’s pension calculated on a regulatory basis of 3,315.80 euros (instead of 2,439.23 euros), after the National Social Security Institute refused to consider the contributions made by her husband while he continued to work with the retirement pension in a situation of suspension due to incompatibility.
According to the Spanish newspaper Noticias Trabajo, the case involves Lorenza, who requested the benefit after the death of her husband, Ismael, and saw the INSS insist that, as the retirement pension was “on hold”, the widowhood calculation should maintain the old basis of the pension initially recognized.
The widow went to court and ended up winning in the instances mentioned in the case: first in the Social Court No. 32 of Madrid, then in the Superior Court of Justice of Madrid and, finally, in the Supreme Court, which rejected the appeal and maintained the previous decision.
What did the Supreme Court decide and why
The decisive point is in article 8, no. 3, of Royal Decree 1132/2002 (gradual and flexible retirement regime), which provides that, in certain situations, beneficiaries may choose to have death and survivor benefits calculated based on the deceased’s “active worker” status or, alternatively, the “pensioner” status.
In practice, this means that the widow can choose the most favorable solution: either maintain the initially recognized pension regulatory base (with the applicable revaluations) or request a new calculation with the most recent contributions made while the deceased continued in activity.
In this specific case, with the percentage of 52%, the difference is relevant: 52% of 2,439.23 euros gives around 1,268.40 euros, while 52% of 3,315.80 euros rises to around 1,724.22 euros per month (plus approximately 455.82 euros), before any applicable legal adjustments.
How “flexible retirement” works in Spain
Flexible retirement is a modality that makes it possible to make pension and part-time work compatible, with a proportional reduction in the value of the pension and its own rules. Royal Decree 1132/2002 also provides, in certain circumstances, for the effects of contributions made after the start of the pension, including relevant rules for death and survivor benefits.
What to do when Social Security refuses (lessons from the case)
According to , this process shows that, when there are recent relevant contributions and the law provides alternatives, it may be decisive to request a review and, if necessary, resort to the courts. It also highlights the importance of substantiating the request with the applicable standard and the calculation numbers (contribution bases and regulatory basis), to demonstrate the effective impact on the surviving family member’s pension.
What if it were in Portugal?
In Portugal, the survivor’s or widow’s pension is, as a rule, calculated based on the value of the pension that the deceased received (or to which he or she would have been entitled at the date of death), applying percentages by type of beneficiary. For a spouse/de facto partner, the basic rule is 60% (one holder) or 70% (more than one).
The “pension suspended for working” situation is not, in practical terms, the same as the Spanish one: under the general regime, the accumulation of the old-age pension with income from work is, in principle, permitted, with limits in specific cases. Furthermore, the exercise of accumulated activity may be reflected in legally stipulated increases. Finally, for the start of payment, the deadline counts: requesting within 6 months may allow the pension to be due from the month following the death.
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