Is it necessary to return the pension collected after death?

To amend the regulations on pensions following the death of the holder (survivor's pension, orphan's pension, or other survival benefits), there is no "special" procedure: the general legislative procedure is used, because it involves regulating rights and benefits of the Social Security system, which are established through laws and regulations with the force of law. The decisive factor is the chosen instrument (law or royal decree-law) and who takes the initiative (Government or Parliament).

1. What type of regulation is used to change these pensions?

• Government bill: this is the most common route. The Council of Ministers approves a text that modifies the pension scheme (for example, the survivor's pension) and sends it to the Congress as a bill.
• Private member's bill: these can be presented by groups in the Congress or Senate, a minimum number of deputies, the Senate as a chamber, regional assemblies, or popular legislative initiative. The content can be the same as a government bill, but the initiative does not come from the Government.
• Royal decree-law: the Government can approve urgent changes by royal decree-law, with the force of law, when it perceives an "extraordinary and urgent need." It must be ratified by the Congress within 30 days and can later be processed as a bill to introduce amendments.
• Regulatory norms ("simple" royal decrees or ministerial orders): these are used to develop technical or management aspects (procedures, forms, calculation details within the legal framework), but they cannot alter the basic elements established by law (who is entitled, essential structure of the benefit, etc.).

2. Stages of the ordinary legislative procedure

If the amendment is structured as a bill or private member's bill, it follows the general procedure in the Cortes Generales:

1. Presentation:
   • If it is a bill: it is drafted by the Government, approved by the Council of Ministers, and sent to the Congress.
   • If it is a private member's bill: it is registered by the entitled subject (parliamentary group, Senate, regional assembly, etc.).
2. Qualification and admission for processing: the Board of the Congress examines the text and, if it meets the requirements, admits it for processing.
3. Opening of the amendment period: once admitted, a period is opened for groups to submit total amendments (global rejection or alternative text) and/or partial amendments (specific changes, for example, in the requirements to access the survivor's pension).
4. Debate on totality in the Plenary: the Plenary of the Congress debates whether to take the text into consideration. If approved, the processing continues; if rejected, it lapses.
5. Work in committee: the competent committee (generally Labor, Social Security and/or Inclusion) discusses and votes on the partial amendments and approves a report. Many technical details are negotiated here (for example, percentage of regulatory base, compatibility with other benefits, etc.).
6. Debate and vote in the Congress Plenary: the Plenary debates the committee's report, resolves the amendments that remain "live," and votes on the final text of the Congress.
7. Sending to the Senate: the text goes to the Senate, which can:
   • approve it as is,
   • introduce amendments, or
   • issue a veto.
8. Response of the Congress to the Senate: if there is a veto or amendments, the Congress decides: it can lift the veto by absolute majority (or simple majority if two months pass) and accept or reject the amendments.
9. Sanction, promulgation, and publication: the final text is sent to the King for sanction and promulgation, and is published in the Official State Gazette (BOE). Only from its entry into force (the date set by the law itself or, by default, 20 days later) are the changes in pensions applicable.

3. Role of the Government versus the Cortes

• The Government controls the initiative when it is a bill or a royal decree-law, and also has regulatory authority to issue development provisions.
• The Cortes Generales always have the final say on regulations with the force of law: they can deeply modify government bills through amendments and can transform a ratified royal decree-law into a bill subject to changes.
• Through private member's bills, groups can promote pension reforms even without government initiative, although their practical viability usually depends on sufficient majorities and often on the Executive's position.

The National Social Security Institute (INSS) is the central managing body of the contributory pension system in Spain. It depends on the Ministry responsible for Social Security and, within the institutional structure, is mainly responsible for recognizing rights and managing benefits, while the collection of contributions and account management mainly corresponds to the General Treasury of the Social Security (TGSS).

1. Recognition and management of pensions

The core competence of the INSS is the recognition of the right to economic benefits of the contributory system and some non-contributory ones. Regarding pensions, this includes:

• Contributory retirement pension: resolution of applications, verification of requirements (age, contribution periods, registration or equivalent), determination of the regulatory base and applicable percentage.
• Permanent disability pension in its different degrees: evaluation, through assessment teams (EVI), of the extent of the disability and determination of the type and amount of pension.
• Survivor's pensions (widowhood, orphanhood, and in favor of relatives): verification of the requirements of the deceased and beneficiaries, as well as recognition and calculation of the amount.
• Other periodic benefits entrusted to it (for example, some benefits for birth and child care or pension supplements).

The INSS processes the file, analyzes the documentation, applies the regulations, and issues the administrative resolution recognizing, denying, or modifying the pension.

2. Calculation, control, and review of benefits

In addition to recognizing the initial right, the INSS assumes responsibility for:

• Calculating the amount of the pension according to contribution bases, years contributed, maximum and minimum limits, and possible supplements.
• Annually updating pensions according to legal criteria (revaluations, maximum limit restrictions, etc.).
• Reviewing pensions when circumstances change (review of permanent disability, changes in beneficiary income, compatibility or incompatibility situations with work or other benefits).
• Controlling the maintenance of the right, for example, verifying cohabitation or economic dependence in survivor's pensions, or residence requirements in certain benefits.

It also initiates recovery proceedings for undue benefits when it detects payments that do not comply with the law.

3. Coordination with other system entities

The INSS's function is closely coordinated with other actors:

• General Treasury of the Social Security (TGSS): the TGSS manages affiliation, registrations and deregistrations of workers, and collects contributions. The INSS uses those contribution data to recognize and calculate pensions. Simplifying, it is a division between "collection and account management" (TGSS) and "benefits" (INSS).
• Social Institute of the Navy (ISM): for the Special Maritime Regime, many functions equivalent to those of the INSS are exercised through the ISM, with which the INSS coordinates criteria and management.
• Mutual insurance companies collaborating with Social Security: they manage certain benefits derived from occupational contingencies; the INSS coordinates with them, for example, when a temporary disability is reclassified as permanent disability.
• Public employment services and other agencies: for income information, compatibilities, and data cross-checks affecting pensions.

4. Economic and budgetary management

The INSS administers the budget allocated to the payment of pensions and benefits entrusted to it. Its duties include:

• Ordering and managing the payment of pensions (usually through collaborating financial entities).
• Carrying out internal control of pension expenditure and preparing economic-financial information on its evolution.
• Collaborating in the planning and forecasting of future budgetary needs, providing data and projections on the number of pensions, average amounts, etc.

5. Information, citizen service, and oversight

Another key competence of the INSS is information and service to insured persons and pensioners:

• It handles in-person, telephone, and online inquiries about pension requirements, amounts, and compatibilities.
• It issues certificates and reports (for example, contribution bases for future retirement, work history for certain purposes, retirement simulations, etc., in coordination with other systems).
• It manages administrative appeals against its own resolutions (prior claim, ex officio review, etc.).

6. Differences with the TGSS and mutual insurance companies

In summary, the specific role of the INSS in pension management is characterized by:

• INSS: decides who is entitled to the pension, in what amount and under what conditions, and maintains and reviews that right over time.
• TGSS: manages the economic relationship with companies and workers (affiliation, contribution, collection, debts) and provides contribution information on which the INSS bases its decisions.
• Mutual insurance companies and collaborating entities: assume coverage of certain risks (mainly occupational) and manage some economic benefits; the INSS comes into play when it concerns structural pensions (especially permanent disability and, where applicable, retirement), coordinating the transition from benefits managed by mutuals.

In Spain, the survivor's pension is mainly regulated in the Recast Text of the General Social Security Law (TRLGSS), approved by Royal Legislative Decree 8/2015, especially in the articles on death and survival benefits (arts. 217 and following, particularly 219‑222), amended by later regulations such as Law 21/2021. Below is a summary of the legal requirements when the deceased was already a pensioner (retirement or permanent disability).

1. Requirements related to the deceased person (causant)

When the deceased is a holder of a contributory pension, it is considered that the required contribution period has already been fulfilled. Article 217.1.c) TRLGSS explicitly includes as causants:

• Holders of contributory retirement pensions.
• Holders of contributory permanent disability pensions.

In these cases, no new minimum contribution period is required at the time of death, because the right to the survivor's pension arises from the fact that the person had already generated a contributory pension. Only the contingency that gave rise to the pension (common illness, non-occupational accident, work accident, or occupational disease) is relevant for some improvements or amounts, but not for the basic recognition of the right.

2. Requirements of the surviving spouse

Article 219 establishes the requirements for the surviving spouse:

• Existence of a valid marriage with the causant.
• In case of death due to common illness not arising after the marital bond, it is required:
  • Marriage with a minimum duration of one year at the date of death, or
  • Common children of the marriage, or
  • That a prior cohabitation as a de facto couple is proven which, added to the marriage time, exceeds two years.

If these duration requirements are not met but all others are, article 222 provides for a temporary survivor's benefit, lasting two years and amount equal to the survivor's pension that would have corresponded.

3. Separation, divorce, and annulment of marriage

Article 220 regulates cases of separation, divorce, or annulment:

• The survivor's pension may correspond to whoever is or has been the legitimate spouse, provided that:
  • No new marriage or de facto couple has been contracted.
  • They are entitled to compensatory pension (art. 97 CC) and this ends with the death of the causant. The survivor's pension acts, in principle, as a continuation of that compensatory pension.
• Exception for gender-based violence: women victims of gender-based violence at the time of separation or divorce will have the right to a survivor's pension, even if they did not have a compensatory pension, provided that the violence is proven by:
  • Final judgment or dismissal due to the aggressor's death.
  • Protection order.
  • Report from the Public Prosecutor or other legally admitted evidence.
• In case of marriage annulment, the right corresponds to the spouse who has been recognized the compensation under art. 98 CC, if they have not remarried or formed a de facto couple.
• If there are several beneficiaries (from different marriages), the pension is prorated in proportion to the time of cohabitation with the causant, guaranteeing in any case a minimum of 40 % for the spouse or partner who lived with the causant at death.

4. Requirements for de facto couples

Article 221 recognizes the right to a survivor's pension to the surviving de facto partner, on a lifelong basis, if:

• Both members are not married to another person nor form another de facto couple.
• There is a stable and notorious cohabitation of at least five years immediately prior to death, proven by registration of residence, unless there are common children (in which case the cohabitation requirement is relaxed and focuses on formal proof of the partnership).
• The couple is registered in a specific regional or municipal registry, or has been formalized in a public document, at least two years before the death.

If a de facto couple ended before death, the survivor may have the right if:

• They have not contracted a new marriage or new de facto couple.
• They are entitled to a compensatory pension that ends with the death of the causant (with formal requirements similar to those of divorce).
• Again, an exception for gender-based violence is provided under terms analogous to those of divorce.

5. Other basic aspects

• The survivor's pension is, in principle, lifelong, except for causes of extinction (new marriage or new de facto couple, among others provided by regulation).
• It is compatible with the work income of the beneficiary.
• It is incompatible with another survivor's pension caused under certain conditions, unless contributions in different schemes overlap for at least 15 years.

In summary, when the deceased was already a contributory pensioner, the central element becomes the legal relationship and cohabitation (marriage, separation/divorce, annulment, or de facto couple) and, where applicable, the existence of compensatory pension or proven gender-based violence, rather than the contribution period of the causant, which is presumed fulfilled.