The Supreme Court (TS) has endorsed the denial of an orphan’s pension to a separated 64-year-old woman, considering that the 1953 Mutual Benefit Regulations of the National Welfare Institute contemplate this type of subsidy only for single women and ” in view of social change” of the last 70 years.

The magistrates have explained that “the purpose of this norm was to avoid the lack of protection of the daughters of legal age who had dedicated themselves exclusively to the care of their parents, so that, when their parents died, they frequently found themselves in a state of need because They had neither a paid job nor a spouse to provide them with food”.

In a ruling, the Supreme Court has concluded that in this case the woman got married and, therefore, does not have the right to receive the orphan’s pension included in the 1953 rule, even though she was separated when her father died and divorced years later.

Within the framework of the resolution, the court has also stressed that said text “must be interpreted in accordance with the social reality of the time in which it must be applied”, therefore “in view of the social change produced from the date on which that standard was approved -1953- up to the present” cannot make “extensive interpretations” on said right.

Thus, the Social Chamber has endorsed the decision of the National Institute of Social Security (INSS) to deny the orphan’s pension to a woman who applied for it at age 58, after her father -mutual member of the National Institute de PrevisiĆ³n – passed away in 2016. She, who had been married since 1988, was separated by judgment in 2001 and divorced a year after her father’s death, in 2017.

Although initially the INSS recognized the complementary orphanage benefit, seven months later the public entity filed a lawsuit requesting that the recognition of said subsidy be annulled.

An instance court dismissed the INSS’s claim and the Superior Court of Justice (TSJ) of Madrid confirmed that decision. Dissatisfied with this, the entity took the case before the Supreme Court to request that it unify doctrine.

The INSS argued that the marriage was sufficient cause to prevent the woman from receiving the supplementary pension for the death of her father, therefore, in its opinion, she had no right to receive it. When going to the high court, she presented a sentence issued in the Valencian Community in which said benefit to a separated woman was not recognized.

In this case, the high court has recalled that the 1953 rule “differentiated between the orphan’s pension for men, which expired when they turned 21; and for women, which was for life, unless they married or took a state.” religious”.

On this point, it has specified that the regulation considered that men, by the mere fact of reaching that age, could achieve economic independence that made the payment of the pension unnecessary. And he has indicated that, on the contrary, the norm contemplated that in the case of women, “as long as they remained single, regardless of their age, they should be paid the pension”, because they were in charge of the care of the parents if they did not they married

In this sense, the Supreme Court has declared -in a resolution for which magistrate Juan Molins has been a speaker- that neither divorced nor separated women are entitled to this benefit for orphans in 2023.

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