When a divorced or separated person who has rebuilt his life with another person dies, the widow’s pension is distributed between the two exes in proportion to the time of coexistence with the deceased, provided that the first couple had been collecting compensatory pension and has not married again or formed a common-law partner, and respecting the minimum of 40% to the last partner.
But what happens when the ex-spouse dies later? This question has just been answered by the Supreme Court (TS) in a sentence, which you can consult here, in which it has recognized the right to increase the pension of the last of the wives after the death of the historical spouse with whom he shared the benefit.
The deceased had been married twice, in such a way that each of the women received the widow’s pension in the proportion proportional to their cohabitation with him (calculated from the day of the marriage or constitution of the common-law partnership until death). In this matter, the first wife received almost 70% and the second, 40% (since it was increased to reach the minimum limit).
When the first wife died at the age of twenty-one, the widow asked to receive the full pension and was denied it. He has had to go to the Supreme Court to agree with him.
The General Law of Social Security (LGSS) does not contemplate this peculiar assumption because the regulation of the widow’s pension has always been – in the words of the judge himself-, concise, and therefore it must be interpreted in a favorable sense to the “second widow” for logical and humanitarian reasons since, if there had been no concurrence of wives, the full pension would be collected, without being limited by the proportional part that the former partner received.
In the words of the sentence itself, something is being requested that not expressly prohibited.
At the time of the husband’s death, the surviving couple has a full right to the widow’s pension, but since there was a divorce or separation in between, he had to share it with the first wife. However, when the first wife dies, whoever is the spouse at the time of death deserves to regain broad protection. The TS uses a poetic phrase to explain this right: “We are in the presence of a kind of communicating vessels, because the decrease or increase in the pension received by each of the beneficiaries affects the other.”
This consistent interpretation leads to the conclusion that the widow’s pension should be increased to 100%. And it is that, if there had been no concurrent pension, he would have received it in full regardless of the duration of his marriage.
It is not an increase in the pension, because Social Security will continue to pay the same amount (although to a single beneficiary), but rather a restoration of the right in its original dimension since the cause for which it was charged in a lower amount disappears.
Finally, it is worth noting the warning made by the Supreme Court in its judgment, as it insists that this solution cannot be transferred to the reverse case (death of the widow and survival of the first spouse), or to other cases in which there have been different marriages and beneficiaries of another type concur (for example, when there are several ex-spouses).