A recent decision by the Superior Court of Justice of La Rioja (TSJ La Rioja) has once again placed access to widow’s pension in situations of de facto union (“pareja de hecho”), when there is a previous marriage that was only dissolved close to the date of death, at the center of the debate.
The case gained importance because it contradicted the initial understanding of Spanish Social Security, which refused the request because it considered that the applicant maintained a marital relationship with a third party within the two years prior to the death of her partner.
According to information contained in the process, shared by Noticias Trabajo, a Spanish website specializing in labor and legal matters, the woman requested a widow’s pension on March 4, 2024, but the National Social Security Institute (INSS) rejected the request by resolution of April 12, as it understood that this circumstance made it impossible to comply with legal requirements.
The applicant had been married since 1991, was legally separated in 2000 and divorced in 2022. However, she had lived with her partner since at least 2012, having registered the union as “pareja de hecho” on January 31, 2020. When her partner died, in February 2024, she filed the pension request, which ended up being administratively refused and then discussed in court.
Court considered that cohabitation prior to divorce can also count
Unsatisfied, the applicant went to court. Initially, the Juzgado de lo Social no. 1 of Logroño agreed and revoked the INSS’s refusal. Social Security appealed, insisting that, under article 221.2 of the General Social Security Law, there was a marital impediment that would prevent the years of coexistence relevant to the recognition of the right from being counted as valid.
TSJ La Rioja rejects “excessively restrictive” interpretation
The Superior Court of Justice of La Rioja upheld the decision and rejected the appeal. For judges, the law requires two distinct and simultaneous requirements for pensions through a de facto union: (i) stable and uninterrupted coexistence for at least five years before death and (ii) formalization of the union through registration or public document at least two years in advance.
The court highlighted, in accordance with , that the legislator does not require that the entire period of cohabitation be carried out without any marital impediment, it is enough that this impediment is resolved at the time of death.
In the same vein, it considered that registration as a “pareja de hecho”, carried out before the divorce, is not automatically invalidated, as long as, at the date of death, the previous marital bond had already been extinguished. For the TSJ, requiring that the five years have elapsed in full without this link would be introducing a restriction not provided for in the law.
The decision relies on a private vote and is not definitive: a cassation appeal was filed to unify the doctrine with the Supreme Court.
And in Portugal?
In Portugal, the framework is different, but there are comparable principles. Law No. 7/2001 defines de facto union as the situation of two people who have lived in a de facto union for more than two years and establishes impediments to its legal effects, including previous undissolved marriage, unless a judicial separation of persons and property has been decreed.
Regarding the counting of time and the weight of marital status, the answer may depend on the specific case and the available evidence.
Even so, jurisprudence has pointed out that, for the production of legal effects, the critical point is the situation at the moment in which the legally relevant union ends (for example, due to death), and it is not necessarily required that the person has been “unmarried” for at least two years as long as, on that date, the impediment no longer exists.
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