Widow's Pension: Common-Law Wives' Entitlement Explained

The eligibility criteria for a widow's pension vary across different countries and regions. In Spain, for instance, widow's pension is a recognized right for spouses who have lost their partners, and de facto couples can also claim this pension if they meet the requirements outlined in articles 217, 219, and 221 of the Consolidated Text of the General Social Security Law. In other places, like Wales, a cohabiting partner with children can claim Bereavement Support Payment (BSP) if their partner died after April 6, 2017, or they can claim Widowed Parent's Allowance if their partner died before that date. In the US, common-law marriages are recognized for Social Security survivors' benefits, but only if the marriage was established in a state that permits them.

Can a common-law wife claim a widow's pension?

Common-law marriage and social security benefits

In the context of social security benefits, common-law marriage refers to a couple's ability to acquire legal recognition of their union without undergoing a formal marriage ceremony. The availability of such recognition varies across jurisdictions, impacting the social security benefits accessible to these couples, particularly in the case of a spouse's demise.

In the United States, the Social Security Administration (SSA) acknowledges common-law marriages, but only if they were established in states that permit them. Consequently, if a couple resides in a state that does not recognize common-law marriage, they cannot establish their union in that state. However, if they move to another state that permits common-law marriage, their marriage will be recognized there, and they may be eligible for Social Security survivors' or spouses' benefits, provided the marriage was established in a state that allowed it.

The situation is different in Spain, where the debate surrounding common-law couples' access to widow's pension benefits has gained prominence. Supporters of extending these benefits to de facto couples argue for equality and social justice, emphasizing that all forms of cohabitation should be legally recognized and protected. They contend that, similar to legally married spouses, common-law couples often build a life together and suffer significant losses upon the death of one partner. Opponents, however, maintain that the widow's pension is intended specifically for legal spouses, highlighting the distinction between a legal and formal commitment in marriage compared to a de facto relationship. Despite this ongoing debate, Spain currently grants de facto couples the right to a widow's pension, provided they meet the requirements outlined in the Consolidated Text of the General Social Security Law.

In the UK, the Bereavement Support Payment (BSP) is available to those whose spouse, civil partner, or cohabiting partner (with whom they have children) died after April 6, 2017. This benefit is not means-tested, and a claim can be made regardless of income or employment status, although eligibility criteria apply. For deaths before this date, a claim for the Widowed Parent's Allowance can be made, but only if the couple was married or in a civil partnership.

Widow's pension in Spain

In Spain, the pension paid to widows and widowers is set to reach a record high in 2025, with the average monthly amount exceeding 900 euros for the first time. This increase will affect all contributory pensions, including those for the widowed, and is expected to benefit the more than 2.35 million people receiving this pension.

The Spanish widow's pension, known as "Pensión de Viudedad", is a contributory benefit that widowed partners can receive when their partner has died, provided certain conditions are met. To be eligible, the deceased must have paid into the Spanish Social Security system, with specific requirements including contributing for at least 500 days in the five years before their death or having an overall contribution period of at least 15 years. Additionally, the deceased must have been receiving or entitled to receive a contributory retirement pension.

To claim the widow's pension in Spain, certain documents must be presented, including proof of identity and legalised and translated documents confirming the relationship with the deceased and the current civil status of the applicant. If the applicant was married to the deceased, a family book, civil registration, or equivalent foreign document such as a marriage certificate is required. In cases of separation, divorce, or nullification of the marriage, additional legal statements and documents are necessary.

The amount of the widow's pension in Spain is calculated based on a percentage of the regulatory base, which is typically 52% under normal circumstances. This percentage can increase to 60% if the widowed person does not have significant income from real estate capital, capital gains, or other economic activities. In certain cases, the benefit can be further increased to up to 70% if the pensioner has family responsibilities and meets specific income requirements.

It is important to note that the pension amount is not uniform and can vary depending on the specific circumstances of each recipient, including their situation and family responsibilities. Additionally, the pension may be withdrawn under specific circumstances, such as remarriage, formalisation of a domestic partnership, or a judgement declaring the beneficiary guilty of the death of their spouse.

Arguments for and against extending widow's pension to common-law couples

Arguments for extending widows' pensions to common-law couples

Common-law marriages are not recognised in all states or countries. However, there are arguments for and against extending widows' pensions to common-law couples. Here are some of the key points in the debate:

Financial support for the surviving partner

One of the main arguments for extending widows' pensions to common-law couples is to provide financial support for the surviving partner. In the event of their partner's death, the surviving partner may be left without adequate financial resources, especially if they were financially dependent on their partner. Extending widows' pensions to common-law couples would help ensure that the surviving partner has some financial security and can maintain a decent standard of living.

Recognition of changing social norms and family structures

The nature of families and relationships has changed significantly over time. There has been a steady increase in cohabiting-couple families, making them the fastest-growing family type in the UK. As such, the argument is that the current system, which primarily recognises only legally married couples or civil partnerships, is outdated and needs to adapt to reflect these social changes.

Human rights and equality

Denying benefits to common-law partners can be seen as a form of discrimination and a breach of human rights, as highlighted in the Northern Ireland case of Siobhan McLaughlin. The ruling by the Supreme Court in this case, which deemed the denial of a widowed parent's allowance to an unmarried mother as illegal, set an important precedent for recognising the rights of unmarried couples and their children.

Arguments against extending widows' pensions to common-law couples

Legal and financial implications

Extending widows' pensions to common-law couples could have significant legal and financial implications for pension schemes and the government. Pension schemes, particularly those in the public sector, may need to make changes to their rules and policies to accommodate this extension of benefits. There may also be concerns about the potential cost of providing these additional benefits, as it could result in higher contributions or reduced benefits for existing beneficiaries.

Complexity in defining common-law relationships

There is also the challenge of defining what constitutes a common-law relationship. This could include determining the length of time a couple must have lived together to be considered a common-law couple, or whether there should be other criteria to establish a common-law marriage. Defining these relationships can be complex, especially when trying to establish clear and fair rules for pension benefits.

Impact on traditional marriage

Some may argue that extending widows' pensions to common-law couples could discourage traditional marriage or reduce the incentives for couples to marry legally. This could further complicate the legal and financial landscape surrounding marriage and partnerships, particularly when it comes to issues of inheritance, property rights, and other benefits currently associated with legal marriage.

Bereavement Support Payment (BSP)

To be eligible for BSP, one of the following must have applied when your partner died: you were getting Child Benefit for a child that lived with you, or you were told by the Child Benefit Office that you were entitled to Child Benefit for a child that lived with you, even if you chose not to receive it. If your partner was getting Child Benefit or was entitled to it, you will need to make a new claim in your name before applying for BSP.

You must have been married to your partner, in a civil partnership, or living with them as if you were married. Your partner must have also paid a certain amount of Class 1 or Class 2 National Insurance contributions in any one tax year since 6 April 1975. You can still make a claim if you are unsure whether your partner paid enough National Insurance contributions—the Bereavement Service will be able to advise you. BSP is not means-tested, so what you earn or how much you have in savings will not affect what you get.

You usually need to make a claim within 21 months of your partner's death. However, if it has been over 21 months and your partner's cause of death was only recently confirmed, you may still be able to make a claim. If you are a common-law wife, you may be able to claim BSP, but this will depend on other factors such as whether your common-law marriage is recognised in the state where you are claiming, and whether your partner paid enough National Insurance contributions.

Widow's pension and divorce

A survivor's pension is calculated based on the deceased spouse or cohabitant's previous earned income and their earned pension. The survivor's pension constitutes 55% of the pension the deceased would have received if they had been entitled to a disability or old-age pension at the time of their death. If you are divorced, you are entitled to a widow's pension only if you meet the following conditions: you have a child (minor or adult) and the marriage lasted for at least 10 years; or you were over 45 at the time of divorce and the marriage lasted for at least 10 years; or you are over 45 when the youngest child turns 18; or you have minor children (under 18). In this case, you are entitled to a pension until the youngest child turns 18. If you become legally separated, your widow, widower, or civil partner will continue to be entitled to receive a survivor's pension should you die before them. However, if you become divorced or your civil partnership is dissolved, your ex-spouse will no longer be entitled to a survivor's pension unless you meet the conditions outlined above.

In some jurisdictions, common-law marriages are recognized, and a common-law wife may be eligible for a widow's pension. However, this recognition varies by state or country, and specific criteria must be met. For example, in some places, a common-law marriage must have been established in a state that permits them, and the duration of the marriage may be considered. It is important to note that the eligibility criteria for a widow's pension can vary depending on geographical location and specific regulations.

Frequently asked questions