The restriction established in the Social Security Law that imposes the requirement of have been married for at least six months to be able to access the widow’s pension, in cases in which one of the spouses dies as a worker registered with the IMSS, determined the Supreme Court of Justice of the nation (SCJN).
With this ruling, approved by the Second Chamber of the highest court, Any newlywed will have the right to have the Mexican Social Security Institute (IMSS) give them their corresponding widow’s pension.if your spouse dies before six months after getting married.
The ministers considered that article 132 of the current Social Security Law imposes an unjustified requirement to access this type of pension, since – de facto – various obligations, but also rights, are acquired from the first minute of a marriage.
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Demand unjustified requirements such as that the death of the spouse occurs after six months of marriage, or that they have had children, violates the human rights to equality, non-discrimination and social security provided for in the Constitutionsince the rights of those who did not have children are arbitrarily restricted when they face a situation similar to those who did have them.”
The paragraph of the rule declared unconstitutional made a single exception to count on the widow’s pension from the IMSS. If the marriage had not lasted six months, but the newlyweds already had children, the surviving spouse was entitled to this benefit.
The ruling details that people cannot be treated differently just for having children, since – with or without them – they face the same situation: Their husband or wife died, so in constitutional terms there is discrimination when the IMSS denies this pension to the widow or widower whose marriage lasted less than six months.
In this case decided by the Second Chamber of the Court, the federal government argued that the provisions of Article 132 of the Social Security Law did not imply discrimination, since it was only a temporary rule. In contrast, the ruling explains that this distinction is discriminatory, which is prohibited by article 1 of the Constitution,
In this way, the Court ruled in favor of a woman who filed an Amparo Trial against the Social Security Law, granting her the protection of federal justice so that the IMSS could give her her widow’s pension.
The plaintiff who won the protection had lived with her partner since 2018, under the figure of common law marriage. The two married in July 2021, but the union only lasted twelve days. Since the couple did not have children, the IMSS refused to consider her a beneficiary of the widow’s pension, based on the article of the law that was considered unconstitutional by the Court.
The criterion upheld in this ruling It is a mandatory precedent for the entire country, so the IMSS cannot deny the pension to widows or widowers whose marriage has lasted less than six months. If the institution’s refusal persists, the affected person must file an Amparo Trial, which will be resolved in favor of the plaintiff, following this ruling.
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Surya Palacios Journalist and lawyer, specialist in legal and human rights analysis. She has been a reporter, radio host and editor.