Claims of surviving dependents

from the company pension plan

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Claims of surviving dependents from the company pension plan

Law firm for labor law in Kerpen, Cologne and Witten

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Despite the loss of a close relative through death, the legal circumstances of the deceased usually need to be settled. The statutory pension insurance contains several safeguards in the event of death. Among other things, a spouse as survivor may be entitled to a survivor's pension from the company pension plans result. This is because it is not uncommon for companies to provide their employees with a operational Fund retirement benefits. 

In this case, the scope of the benefits payable to the employee or his surviving dependents is regulated by a civil law agreement with the pension provider. While the pension benefits the widows and widowers, they represent an incalculable financial risk for the employer. Often, the person of the surviving dependant is not known at the time of the issuance of the company pension scheme is still pending. In the past, the Federal Labor Court also had to deal with corresponding clauses limiting the survivor's pension, so that certain requirements now arise with regard to the granting of the widow's and widower's pension.

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Statutory anchoring of survivors' benefits

The surviving dependents' pension

At Company Pension Act (BetrAVG) it is determined which services the Retirement benefits the employer may grant to the employee. According to. § Section 1 (1) BetrAVG these benefits provided by the employer include the Retirement benefits, disability benefits and surviving dependents' benefits. Thus, there is an explicit provision that the company pension scheme may also include surviving dependents' benefits, provided the employer expressly agrees to this. As a rule, this additional pension serves to compensate for the loss of income of the deceased and thus to provide financial security for the surviving dependant.

Survivors' pension: Time of occurrence of the pension

Conditions for severance pay

Decisive for the company pension scheme is the implementation method and the existence of a completed endowment or pension insurance. If the insured person dies before the pension begins, the capital already accrued and the contributions made are returned to the surviving dependents or a survivor's pension is paid out. However, the survivor's pension may only be paid to the spouse, registered partner or children entitled to an orphan's pension.

If the insured person dies after the pension has commenced, the pension will continue to be paid within a guaranteed period or a survivor's pension will be paid. In each individual case, this is based on the agreements set out in the contract.

If there are no surviving dependents instead, a death benefit is paid to the heirs or to beneficiaries. Depending on the implementation method, an amount of up to 8,000 euros can be granted.

Requirements for the survivor's pension

Requirements for surviving dependents' benefits

If the beneficiary of the occupational pension dies, the spouse of the deceased is entitled to receive a widow's pension. However, the entitlement for surviving dependents depends on certain factors. Since the widow's pension and the statutory pension are treated more or less the same in legal terms, similar conditions must also be met for an effective claim.

Firstly, the marriage must have lasted at least twelve months for the widowed person to be entitled to the small widow's pension. This is only paid for a maximum of two years and comprises 25 percent of the actual company pension. To meet the requirements for the large widow's pension, the surviving person must also be at least 45 years old or have a verifiable reduction in earning capacity. The pension is then 55 percent of the actual occupational pension. In addition, surviving children may be entitled to an orphan's pension from the deceased parent's occupational pension. However, it is important to note that the total amount of the surviving dependents' pension paid out may not exceed the amount of the agreed occupational pension.

It should also be taken into account that in some cases of legitimate interest of the employer, the widow's and widower's pension may be excluded by certain clauses. However, such restrictions must not constitute an unreasonable disadvantage for the pension beneficiary. For example, in a landmark decision of the Federal Labor Court (BAG, ruling dated February 19, 2019, 3 AZR 150/18), a clause was declared inadmissible in which the survivor's pension was made dependent on the marriage lasting ten years. 

The Federal Labor Court found the period of ten years to be arbitrary and considered the time limit to jeopardize the purpose of the surviving dependents' pension. In the specific case, it would have no intrinsic connection to the employment relationship. According to the case law of the Federal Labor Court, a minimum marriage period is only appropriate if it obviously serves to exclude a survivor's pension for so-called pension marriages. These are usually concluded immediately before the expected death of the spouse primarily in order to grant the spouse pension benefits.

Other restrictive clauses, on the other hand, have now been recognized by the courts. One example is the so-called late marriage clause. It is permissible to exclude the survivor's pension if the marriage takes place late. This may be the case if the marriage takes place after the insured event has occurred or if the marriage takes place after the insured person has reached the age of 62, which is the relevant age limit at which the old-age pension should start to be granted under the pension plan.

The possibility of an age gap clause and thus the exclusion of a widow's or widower's pension continues to be legally recognized if the age gap between the spouses is of exceptional size. As with the late marriage clause, however, the distance chosen must be reasonable and necessary. Among other things, the Federal Labor Court has confirmed the reasonableness in the case of a difference of 15 years. It is also possible to reduce the amount of the survivor's pension by five percent each year. 

However, it is disputed how the case is to be assessed if the age difference between the spouses is only ten years. The assumption of an exclusion is supported by the fact that the age difference of ten years typically exceeds the usual difference considerably. Moreover, in the case at hand, it is to be expected that the spouses, with such an age difference, have already arranged their lives in such a way that one spouse spends part of his or her life without the other.

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Legal possibility in case of refusal by the employer to grant a survivor's pension

Legal options for asserting claims

In the event that the employer refuses to provide a company pension, employees have the option of claiming deferred compensation. Here, parts of an employee's salary are used for the company pension, so it is ultimately financed by the employee himself. Consequently, a company pension claim can be enforced in case of doubt. Thus, survivors' benefits from the company pension can still be individually agreed with a direct insurance policy financed by the employee himself.


Employers should be aware of the extent to which they have granted company pension scheme to protect themselves from economic burdens. Among other things, the regulations of the General Terms and Conditions (GTC) are available to them for structuring these. This is because, in the opinion of the German Federal Labor Court, the pension regulations established in a company are subject to the law of general terms and conditions and are thus subject to the content review of Section 307 (1) of the German Civil Code (BGB). Consequently, restrictions on the claims of surviving dependents are only permissible if the employer has a justified interest, and in each case only if they do not represent an unreasonable disadvantage for surviving dependents.

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