My mother-in-law claimed a widow’s pension for first husband while married to her second. Will we have to repay?

My mother-in-law has been claiming a widow’s pension for many years now. When her first ex-husband died, she was married to her second husband. I have recently found out she has been claiming a widow’s pension from her first ex-husband’s employer while married to her second husband. My understanding is that a married or divorced woman is not entitled to a widow’s pension. However I am not entirely sure about what’s right and wrong.

My question is: will the family of the woman have to repay the amount she received from the semistate body from any inheritance they may receive on her death.

Ms B.M.

Stepping into the affairs of family members is, understandably, something that people are loathe to do. And whether your mother-in-law has been cutting corners in claiming pensions is something that is likely to present a headache for whomever is left to act as executor on her estate.

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It won’t really affect those inheriting because they don’t really come into the picture until after probate by which time any irregularities are supposed to have been sorted. They stand to benefit only from what is left in her estate after all debts have been paid.

I suppose the first thing to sort out is how many widow’s (or survivor’s) pensions your mother-in-law is actually claiming. You make reference to a claim against the semistate pension scheme of her first husband but it is unclear whether she is also applying for the State widow’s pension. The rules can be different on each.

In relation to her first husband, her entitlement to any survivor’s pension depends entirely on the rules of the particular pension scheme of which he was a member.

The more challenging element of the eligibility criteria for your mother-in-law is a rule that the pension is payable only for so long as she does not cohabit or marry again

Having spoken to people in the industry, I am told that some schemes do stop paying once a widow(er) remarries, even where they would have been fully entitled to the survivor’s – sometimes called dependent’s – pension initially. Apparently, there was a Revenue view that one had to be financially dependent on the deceased in order to benefit from the payment.

That, I am told, was certainly the case at one point in the public sector, a practice that would have been followed in most semi-States as well.

However, a straw poll among pension funds suggests it is now around 50/50 in terms of whether such a pension continues to be payable where you subsequently remarry or not. So your mother-in-law’s entitlement to this payment from her first ex-husband’s former employer depends entirely on the wording of the rules of the scheme at the company where he worked.

This being the real world, however, the other thing to note is that the husband’s former employer might have no reason to know of her change of circumstances so, even if entitled to a refund, they might never know to trigger it.

The other thing I would say is that pensions generally feature in divorce settlements. After all, after the family home, pensions are usually a family’s largest single investment. Any court working through the financial arrangements around a divorce would want to know what arrangements were in place around pensions. The final settlement would generally depend on whether both parties independently had occupational pensions or not.

If your mother-in-law did not have a private pension, or her pension fund was much smaller than that of her ex-husband, it is certainly possible that any final financial settlement would take that into account.

Eligibility for the State widow’s pension is much more black and white.

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You will not qualify in the first place if either the widow(er) or the deceased spouse did not have at least 260 weekly PRSI contributions paid before the date they died or the 66th birthday of whomever’s PRSI record is being used, whichever is the earlier. If the husband died before December 27th, 2013, the entry level figure is a more modest 156 PRSI payments.

And that’s not all, they will also have to have an average of least 39 weekly stamps in the three or five years before whichever cut-off point is used or an average of 24 PRSI payments per year over their working life. If you are relying on that 24 figure, it entitles you only to a reduced widow’s pension; you’ll need the average to be 48 or above for the full pension.

To be fair, there is little difference. The reduced pension is €219.50 a week if the widow(er) are under the age of 66. It rises to €222.10 if the annual average is above 36 PRSI stamps, and to €225.50 once you exceed the average of 48, so the maximum difference per week is just €6.

Once the widow(er) turns 66, the figures jump to €265.30 (in line with the full State pension), €260.10 and €254 respectively.

But the more challenging element of the eligibility criteria for your mother-in-law is a rule that the pension is payable only for so long as she does not cohabit or marry again. Once she moved in with her second husband, she was no longer eligible and, as you say this happened before the first husband died, she would not at any point have been eligible for the pension.

The fact that she was divorced is not, of itself, a disqualifying feature for the State widow’s pension. Despite divorce, she would continue to retain her entitlement to the widow’s state pension provided she or the first husband met the PRSI criteria at the time and she had moved in with or married anyone else.

If she did apply for and receive the state widow’s pension, there will be repercussions. It is very normal that the Department of Social Protection would run a check when she dies to satisfy itself that she was validly in receipt of any benefits. And it will be up to any executor to co-operate with the Department on that.

In the circumstances you outline, she would not have been eligible for the state widow’s pension at any point and any money she received under that heading would be repayable.

If she was claiming in error from the ex-husband’s former employer, that too would have to be repaid although, unlike the Department of Social Protection, they are less likely to institute a review unless they are made aware of it.

But, before we run away with ourselves, the money is not repayable by the family on any inheritance they receive: it will have to be paid back to the State before her will secures probate. So it would be repaid before you get to the point where anyone has inherited. Sorting out all of these outstanding financial liabilities as well as gathering details of any assets is a key function of an executor when they are managing a person’s estate after their death and preparing for probate.

Sure, it may diminish what people thought they might get but then it was never legitimately part of your mother-in-laws assets or estate anyway, so repayment is simply resetting the clock to where it should have been.