Widow's pension

Beneficiaries

(A) WIDOW ' S PENSION

1.1 Widow ' s pension shall be payable to any person and to any person who has been a legitimate spouse of the person responsible for the passive rights, provided that he or she has not remarried or has been a de facto partner.

In cases of separation, divorce or annulment, access to a pension is conditioned on the fact that, having the right to a compensatory pension or compensation referred to respectively in articles 97 and 98 of the Civil Code, the pension will be extinguished by the death of the deceased. The right to a widow ' s pension will not be conditioned on the requirement to be a compensatory pension holder if the beneficiary proves to be covered by one of the following circumstances:

• be a victim of gender-based violence at the time of legal separation or divorce, or
• have an age of more than 50 years on the date of the death of the pensioner or the existence of common children in the marriage, provided that the following requirements are met:
  • Divorce or judicial separation took place prior to 1 January 2008.
  • A period of time not exceeding 10 years has elapsed between the dates of divorce or separation and the death of the person responsible for the widow ' s pension.
  • The marriage bond has had a minimum duration of 10 years.

1.2 Widow ' s pension shall be payable to a person who was joined to the deceased at the time of his death, forming a de facto couple, provided that the following requirements are met:

- What cause and beneficiary:

• They have a similar relationship of affectivity to the conjugal woman.
• There is no marital link with another person, nor are they prevented from marrying each other.
• A stable, notorious, uninterrupted and immediate coexistence shall be established by the appropriate registration certificate upon the death of the deceased not less than five years.
• There is a public formalization of the status of a de facto partner, which is evidenced by:
  • certificate of registration in one of the specific registers existing in the Autonomous Communities or Municipalities of the place of residence, or
  • by means of a public document stating the composition of that couple.

In both cases, the formalization must have taken place two years in advance of the date of death.

(B) TEMPORARY WIDOWHOOD ALLOWANCE

A temporary widow ' s benefit shall be granted, for two years, in the same amount as the widow ' s pension that would have been payable, to those who, in the event of the death of the deceased due to a common illness (disturbances of health that do not have the status of accidents at work or occupational diseases), which did not occur after the marriage bond, do not accredit a minimum period of one year of marriage to cause a widow ' s pension, unless:

• there are common children or
• A period of cohabitation, including a period of cohabitation accredited as a de facto partner, of more than two years shall be accredited.

The temporary widow ' s benefit, in the event that a temporary compensatory pension has been established, shall lapse on the same date as the compensatory pension has lapsed.

Termination of the pension

The right to widow ' s pension shall be extinguished when the beneficiary marries or constitutes a de facto couple, or, in the case of a temporary compensatory pension, on the same date as the compensatory pension has been established.

However, those who entered into marriage on or after 1 January 2002 may retain the benefit of the widow ' s pension provided that each and every one of the following requirements is met:

• The pensioner is over 61 years of age or, if he/she is under 61 years of age, is recognized as having a permanent disability that disqualifies him/her for any profession or trade.
• The widow ' s pension is the main source of the pensioner ' s income (it must be at least 75 per 100 of his income).
• The total income of the new marriage does not exceed twice the current minimum wage per year.

In any event, any person convicted, by final judgement, of the commission of a malicious crime of homicide in any form or of injury shall lose the status of beneficiary of the widow ' s pension when the victim of such crimes was the cause of the pension, unless, where appropriate, there is reconciliation between them.

Calculation of the pension

The amount of the widow ' s pension is 50 per 100 of the statutory basis, or 25 per 100 in the event that the deceased person died after being declared unused in the act of service or as a result thereof and the extraordinary pension was indicated in his favour.

However, the percentage shall be 58 per 100 or 29 per 100, when the following requirements apply simultaneously and at all times to the beneficiary:

a. Have attained an age of 65 years or more.

b. Not to be entitled to another Spanish or foreign public pension.The said increase will be compatible with public pensions, whether Spanish or foreign, the amount of which does not exceed the amount of the same. In such cases, the increase in the widow ' s pension shall be paid only for the difference between the amount of the widow ' s pension and the amount of the pension received by the beneficiary.

c. Not to receive income from the performance of an employed or self-employed job.

d. Not to receive income from capital, economic activities or capital gains, in accordance with the concept established for such income in the Personal Income Tax, which in annual calculation exceed the income limit established in the corresponding Law on General State Budgets to be a beneficiary of the minimum widow ' s pension.

Where, following divorce, several beneficiaries are entitled to a pension, the pension shall be recognized in proportion to the time of each beneficiary ' s cohabitation with the deceased, 40 per cent being guaranteed to the surviving spouse or the deceased ' s domestic partner.

In the event of matrimonial nullity , the right to a pension shall be recognized in proportion to the time spent with the deceased, whether or not there are other beneficiaries entitled to a pension, without prejudice to the guarantee of 40 per cent in favour of the surviving spouse or partner.

For their part, divorced or judicially separated persons who, as from 1 January 2010, have access to a widow ' s pension, will see a reduction in the amount of the widow ' s pension, or in the amount of the temporary benefit, whichever is higher than the compensatory pension until the amount of the latter is reached.

There shall be no derogation in proven cases of victims of gender-based violence at the time of judicial separation or divorce.

Maternity allowance in widow ' s pensions caused from 1 January 2016 to 3 February 2021

As a result of the judgment of the Court of Justice of the European Union of 12 December 2019, applicable to the 18th additional provision TRLCPE in its wording prior to Royal Decree-Law 3/2021, from 1 January 2016 both parents, regardless of their gender, may have access to the right to recognition of the maternity supplement, provided that they have had natural or adopted children and are beneficiaries of a widow's pension.

They shall be granted a pension supplement for an amount equivalent to the result of applying to the pension to be awarded a percentage based on the number of children born or adopted prior to the event giving rise to the pension, according to the scale:

• In the case of two children: 5 per 100.
• In the case of 3 children: 10 per 100.
• In the case of 4 or more children: 15 per 100.

In any case, the payment of the supplement shall comply with the following conditions:

a. If the amount of the pension to be recognised is equal to or greater than the maximum pension limit, only 50 per cent of the supplement shall be paid even if there is a public pension pool.

b. If the pension to be recognized does not reach the minimum pension amount and the person concerned requests and meets the requirements to receive the minimum supplement, the maternity supplement will be added.

c. In the case of the concurrence of public pensions of widowhood and of retirement or retirement, regardless of the regime in which they are caused, the maternity supplement corresponding to the retirement or retirement pension will be paid.