Rights to pension after death of same sex spouse

Andrewandjohn

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

xylophone

You need to check the  rules for this specific scheme on survivor benefits where marriage takes place after a pension is in payment.

Marcon

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

The scheme has to follow its own rules. You can ask the scheme to send you an extract from the Trust Deed & Rules covering the situation where:

• a marriage or civil partnership took place after the scheme pension had come into payment; and 
• partners were living together in a relationship akin to marriage at the time the member started to draw their pension

If the rules have been correctly applied, then I'm afraid that's the end of the matter in respect of that scheme.

Keep_pedalling

Sorry for your loss and the situation you now find yourself in.

I don’t think this being a same sex partnership is any different to a mixed sex partnership where a marriage took place after a pension started paying out. Same sex marriages became possible before the pension came into effect and same sex civil partnerships where available from Dec 2005 so you weren’t prevented from forming forming a formal partnership that would allow you to receive the pension. 

Unfortunately it is going to be down to the scheme rules. 

Andy_L

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

Pension schemes had to recognise Civil Partnerships as marriages in their scheme rules for survivor benefits, they were introduced in 2004. Same-sex marriages were introduced in 2014. So there's no scope for a challenge under anti-discrimination legislation as you had the same opportunities as straight couples and are being treated the same as a straight couple who had not married before retiring

They do not have to recognise "living together in a relationship akin to marriage" unless they choose to in the scheme rules, which is why one is paying out & the other isn't

As Marcon said the only chance is if there is a caveat in the scheme rules for "partners were living together in a relationship akin to marriage at the time the member started to draw their pension"

Cobbler_tone

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

Sorry for your loss,
I know people are citing rules but regardless of rules they can also be challenged, if appropriate. I would obtain the wording if you don't already have it.

I guess their rationale is that there was a window before 2017 where you could have got married but I would certainly explore your options before ruling it out.
There must be couples who couldn't legally get married when their pensions came into payment, which I am sure could be legitimately challenged, or get paid out.
 
Follow the providers process though.

This was the highest profile test case around same sex couples, although different to your situation.
https://www.sackers.com/publication/walker-v-innospec-supreme-court-judgment/

All the best.

Marcon

Cobbler_tone said:

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

Sorry for your loss,
I know people are citing rules but regardless of rules they can also be challenged, if appropriate. I would obtain the wording if you don't already have it.

I would also read this and contact a relevant solicitor if you have no joy with the scheme. I guess the only argument is that there was a window before 2017 where you could have got married but I would certainly explore your options before ruling it out. I appreciate at a difficult time. 
Follow the providers process though.

https://www.sackers.com/publication/walker-v-innospec-supreme-court-judgment/

The case you cite is completely different and isn't going to help OP. There is no discrimination here as @Andy_L has already explained. Both civil partnership and marriage were possible before OP's husband started to draw his pension.

'Contacting a relevant solicitor' is a pointless exercise and a needless expense. See https://www.pensions-ombudsman.org.uk/sites/default/files/decisions/CAS-121348-Z6R0.pdf and read from point 32. The scheme will have a perfectly good Internal Dispute Resolution Procedure of its own, although if the scheme has followed its own rules, there will be little point in pursuing it.

Shimrod

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

As others have said, it will be difficult to challenge if that's what the scheme rules say. It's not unknown however for an administrator to misinterpret the rules so worthwhile asking for it to be raised with the trustee.

The scheme rules may also allow for a dependent pension for 'someone financially dependent ' on the pension member. This may be demonstrable by showing joint bills and bank accounts. This becomes harder to challenge if you have a decent income in your own right.

Cobbler_tone

Marcon said:

Cobbler_tone said:

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

Sorry for your loss,
I know people are citing rules but regardless of rules they can also be challenged, if appropriate. I would obtain the wording if you don't already have it.

I would also read this and contact a relevant solicitor if you have no joy with the scheme. I guess the only argument is that there was a window before 2017 where you could have got married but I would certainly explore your options before ruling it out. I appreciate at a difficult time. 
Follow the providers process though.

https://www.sackers.com/publication/walker-v-innospec-supreme-court-judgment/

The case you cite is completely different and isn't going to help OP. There is no discrimination here as @Andy_L has already explained. Both civil partnership and marriage were possible before OP's husband started to draw his pension.

'Contacting a relevant solicitor' is a pointless exercise and a needless expense. See https://www.pensions-ombudsman.org.uk/sites/default/files/decisions/CAS-121348-Z6R0.pdf and read from point 32. The scheme will have a perfectly good Internal Dispute Resolution Procedure of its own, although if the scheme has followed its own rules, there will be little point in pursuing it.

It was more to not just listen to the judge, jury and executioner views often posted on here.
My mantra is be curious and challenging. Not one person knows the full picture or answers on here. It is also totally valid to challenge beyond 'the rules' too. I have a good track record of getting success in areas where I've been advised "there's no point." Sometimes it can just be as easy as getting through to the right person.
It comes down to attitude, value, personal motivation and tenacity.

You will also note you quoted my original and not edit. "This was the highest profile test case around same sex couples, although different to your situation." along with "Follow the providers process", which is vital in any challenge or dispute. 

Silvertabby

It very much depends on the scheme rules, and the actual date of leaving the pension scheme.  Was the pension that has declined to pay out deferred before being brought into payment in 2017 and, if so, when did he leave that scheme? 

MyRealNameToo

Andrewandjohn said:

My husband died recently. He was 62.  He had 2 workplace pensions. He retired early in 2017 and was receiving both pensions monthly. He had nominated me, his spouse, to receive a widowers pension for both of these pensions. We married in April 2018, but had been living together as a couple since 2004. Obviously it wasn’t possible for us to marry until same sex marriage became legalised. One of the pensions has declined to pay out because our marriage took place after he had begun to receive the pension. Can I challenge this decision?

What are the scheme rules?
Why did you not form a civil partnership in 2004 (or when you became committed) given they were available to same sex couples and legally had to be treated as the same as marriage?

It's common for schemes to either be written as spouse at date of death or at date of retirement (meaning the date the pension comes into payment). 

Schemes are free to decide if they are only open to legal spouses or also including those that lived as if they were married irrespective of if they were or weren't. This has been challenged many times and certainly no one has managed to set a precedent that schemes have to accept living like a spouse when they arent. The law doesnt allow a differentiation between spouses and civil partners. 

A friend got married after 30 years of living in sin with his partner because he discovered his police pension only pays out to married couples.