According to Art. 70 paragraph. 3 of the Act on old-age and disability pensions from the Social Insurance Fund, a divorced spouse or a widow who was not married to her husband until the date of her husband’s death, has the right to a survivor’s pension, if she had the right to maintenance on her husband’s day, established by a judgment or court settlement.
In a case considered by the Supreme Court, ref. No. II UK 106/17, during his lifetime, the husband provided his separated spouse with the agreed amount of subsistence. However, ZUS did not grant the woman a survivor’s pension from her deceased husband, claiming that she would be entitled to the pension only if the maintenance had been determined by a judgment or a court settlement.
In a judgment of 9 May 2018, unlike ZUS and the courts of both instances, the Supreme Court stated that voluntary provision of a separate woman’s means of subsistence is legally equivalent to the right to maintenance established by a judgment or a court settlement. Thus, voluntary alimony was a sufficient condition for granting a wife a survivor’s pension.
This position is in line with the judgment of the Constitutional Tribunal of May 13, 2014, file ref. SK 61/13, in which it held that Art. 70 paragraph. 3 of the Act on pensions and disability pensions from the Social Insurance Fund, to the extent that the divorced spouse’s entitlement to receive a survivor’s pension depends on the requirement that on the day of her husband’s death he has the right to maintenance, established only by a judgment or a court settlement, is inconsistent with Art. 32 sec. 1 of the Constitution.
In the opinion of the Tribunal, spouses who are separated in terms of the obligation to provide maintenance by one of them may not be in a less favorable legal position than divorced spouses who may agree to voluntary alimony, legally equivalent to maintenance granted by a judgment or a court settlement within the meaning of Art. 70 paragraph. 3 of the Pension Act. It also does not matter whether the voluntarily donated funds are allocated to the spouse’s maintenance, enter the household budget or are spent on the needs of the whole family.
KS