Claims of surviving dependents

from the company pension plan

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.