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Preferred beneficiary in pension for survivorship in same-sex common law marriages

Judgment 411-2023 of Chamber II of the Supreme Court of Justice also analyzes the preferential nature that the surviving spouse has in the survival pension with respect to other relatives of the deceased.

In the case analyzed by the Supreme Court, the Justices considered that the deceased’s brother had illegally acquired a right to a survivor’s pension. The Justices concluded that the deceased’s brother had misled the Magisterio Nacional by making them believe that he was financially dependent on the deceased. He also hid from them the relationship that his brother-in-law had with the deceased – a relationship of which he was fully aware, but which he did not approve of because they were a same-sex couple.

The Justices recalled that Law 6955 grants a right to a survivor’s pension in exclusive and preferential order to the surviving spouse. They added that the fact that the spouse’s brother received this right illegally should not prejudice the surviving spouse. For this reason, they annulled the right of deceased’s brother to receive the pension and granted 100% of the right to the surviving spouse.

As the economic interests of the National Teachers and the State were at stake- co-defendants in the judicial process -, the Justices instructed these institutions to seek legal action against the deceased’s brother for the reimbursement of all unduly received income and interests. The surviving spouse was granted the right to receive all income since the death of his partner, as well as interests.

In this judgment, the Chamber took note of the discrimination that the surviving spouse received at the hands of the deceased’s brother and his family. They were aware of the common-law relationship that the plaintiff had with the deceased, but they censored any public display of affection between them because it was a same-sex couple. Upon the death of the deceased, the surviving spouse had to leave the matrimonial home and was deprived of his assets by the deceased’s family, including the survivor’s pension – obtained illegally by the deceased’s brother, as concluded by the Chamber.

Surviving spouses in same-sex relationships who have experienced similar situations may resort to administrative or judicial proceedings to claim their rights.

At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at 48-000248 or write to

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation