Through Judgment T-017 of 2018, the Constitutional Court clarified the right that spouses and permanent partners simultaneously have to the recognition of pension substitution and likewise access to the survivor's pension.
The high court determined that the scope and meaning of these social benefits were established by the legislator for the beneficiaries stipulated in the law, such as the closest members affected by the death of the pensioner or affiliate, in order not to leave unprotected those individuals who in various cases are subjects of special legal protection. Thus, Article 48 of the Political Constitution, developed in Articles 47 and 74 of Law 100 of 1993, establishes who may be beneficiaries of pension substitution and the survivor's pension, as well as the requirements they must meet for such status to be recognized.
Regarding the spouse and the permanent partner, Article 13 of Law 797 of 2003, which amended Article 47 of Law 100 of 1993, indicates that access to the survivor's pension can be obtained in two ways: temporarily and for life. Regarding the former, the requirements to be met are outlined as follows: i) Being at least 30 years old at the time of the deceased's death, ii) Proving marital life with the deceased until the date of death, iii) Cohabitation with the deceased for no less than five (05) continuous years prior to death.
On the other hand, regarding the survivor's pension in a lifetime form, the same article in its literal a establishes the following requirements: i) At the time of death, being 30 years old or older, ii) If under 30, having conceived children with the deceased, iii) Proving marital life with the deceased for no less than five (05) continuous years prior to death.
Thus, given the multiplicity of relationships, Article 47 of Law 100 of 1993, in its literal b, determined that in the case of simultaneous cohabitation and upon meeting the aforementioned requirements, the pension will be recognized in equal parts among the beneficiaries, that is, between the spouse and the permanent partner. Regarding non-simultaneous cohabitation, where the marital bond and the de facto marital union were consolidated at different times but the existing marital bond was not dissolved, each beneficiary will receive an equal share of the monthly payment.
Likewise, the high court recalled that its jurisprudence has admitted, for the purposes of the survivor's pension and in relation to cohabitation for at least five (05) continuous years prior to the death of the deceased, that these can be configured under different bonds, thus allowing two types of unions to occur successively, with these five years potentially beginning during marriage and ending during a de facto marital union, or vice versa.
In conclusion, the Constitutional Court provides that access to the survivor's pension may be held by the spouse, the permanent partner, or both, provided that the legal requirements set forth in Article 47 of Law 100 of 1993, as amended by Article 13 of Law 797 of 2003, are met, and likewise, this period of cohabitation may be fulfilled during two events: marriage and de facto marital union, without the occurrence of one or the other being an obstacle to restarting the counting of said term.