Senate eliminates locks on pension for widowhood by marriage after 55 years

The Senate approved a reform to the Social Security Law (LSS) and to the Social Security and Services Institute for State Workers (LISSSTE) to eliminate the locks that prevented people from accessing a widow’s pension in case of having married the insured person after the age of 55.

The Upper House endorsed the opinion unanimously and it was turned over to the Chamber of Deputies for analysis and voting. The changes would apply to both the spouses of working people in the private sector as well as in the public sector.

This modification is in line with the declaration of unconstitutionality made by the Supreme Court of Justice of the Nation (SCJN) in October of last year on article 132 of the LSS that conditioned the widow’s pension to the age at which the insured person had married.

Both the legislation for the social security of workers in the private sector and for bureaucrats deny the pension to the spouses when the marriage with the deceased worker has been celebrated after having fulfilled the 55 years oldunless the death had occurred one year after the nuptials.

“The opinion that they issue in a positive sense is viable, timely and necessary, given the manifest violation entailed by the application of articles 132 and 136, in their fractions 11, respectively, of the Social Security and ISSSTE Laws, to the principles of equality and non-discriminationand the fundamental right of social security, enshrined in our Political Constitution”, is indicated in the approved project.

In the last year, the Mexican Institute of Social Security (IMSS) had registered a little more than 900,000 widow’s pensions in course of payment, with an average amount of 4,781 pesos per month.

“The fractions that provide limitations on the granting of widow’s pension they are unconstitutional because they violate the rights of equality and social security. With this opinion, progress is made progressively in the restitution of the spirit of solidarity on which social security is based, while the barriers that have historically remained in the legislation and that have legitimized the violation of the fundamental rights of people are eliminated”, Gricelda Valencia de la Mora (Morena), president of the Social Security Commission of the Upper House, pointed out.

The Senate had three pending projects presented as of 2019 that proposed to eliminate the lock that denied widowhood pensions based on the age of the insured person at the time of marriage and the duration of their marriage.

Women, the most vulnerable by the restriction

According to the National Institute of Statistics and Geography (Inegi), for the 5% of the population her marital status is widowhood. However, for women this proportion rises to 8% in contrast to 3% for men.

“It is necessary to establish that this reform is pertinent since it would allow expanding the protection of women that they are in a situation of widowhood and that after not complying with the established requirements they cannot access the benefit of the pension, which leaves them in a state of defenselessness”, explained Senator Salomón Jara Cruz (Morena), one of the authors of the three initiatives that make up the opinion.

The issue resolved by supreme court and that declared the unconstitutionality of the lock in the Social Security Law and that of the ISSSTE was the case of Miriam de Lourdes García Chávez. In July 2018, her husband, Jorge Enrique Pimentel García, passed away; they were married eight months ago. However, the IMSS denied her protection, arguing the restriction of age and duration of the marriage.

“You are informed that based on article 132, you will not be entitled to a widow’s pension, section 11, when you have married the insured after he has fulfilled the 55 years old, unless the date of death has elapsed 1 year from the celebration of the marriage; The limitations established by this article will not apply when the insured or pensioner dies, the widow proves that she has had children with him, or in her case, proves the concubinage relationship through the testimonial of concubinage by judicial authority, ”replied the IMSS.

After a district judge denied the amparo and the complainant continued its process in the following instances, the matter reached the Second Chamber of the SCJN where it was resolved in favor of the widow of the insured arguing that the current lock in the legislation ” conditions the granting of the pension to a no fault of the workeras is death, since although fixing the date of marriage is within their reach, the date of death is not.