Survivors' benefits from the pension fund for partners living separately

Pursuant to Art. 20a para. 1 BVG, the pension fund may provide in its regulations for the following beneficiaries for survivors' benefits in addition to the beneficiaries pursuant to Art. 19 (surviving spouse), 19a (surviving registered partner) and 20 (orphans):

• natural persons who were supported to a considerable extent by the insured person, or the person who lived with the insured person in a cohabiting relationship without interruption for the last five years until his death or who is responsible for the maintenance of one or more joint children; 
• in the absence of beneficiaries under letter a: the children of the deceased who do not fulfil the requirements of Art. 20, the parents or the siblings; 
• in the absence of beneficiaries under letters a and b: the other legal heirs, to the exclusion of the community. 

Who can benefit from the pension fund?

A pension fund does not have to favour all of the persons listed in Art. 20a para. 1 lit. a BVG and can define the group of beneficiaries more narrowly than is defined in the law. In particular, it is authorised to assume a more restrictive concept of cohabitation. This is because the beneficiaries of the persons named in Art. 20a para. 1 BVG are part of the more extensive or extra-mandatory occupational benefit scheme (Art. 49 para. 2 no. 3 BVG and Art. 89a para. 6 no. 3 ZGB).

The pension funds are therefore free to decide whether they wish to provide survivors' benefits at all and for which of these persons. Only the categories of persons listed in lit. a-c of Art. 20a para. 1 BVG and the cascade sequence must be observed. All the more reason, therefore, for reasons of legal certainty (proof of circumstances giving rise to a claim) or with regard to the financial viability of the benefits, pension funds are generally permitted to define the group of beneficiaries more narrowly than the law (BGE 144 V 327 E. 1.1; 142 V 233 E. 1.1; 137 V 383 E. 3.2; 136 V 49 E. 3.2; each with references). Consequently, the respective regulations must be examined more closely.

Is there an entitlement to benefits from the pension fund in the case of cohabitation?

As a rule, life partners are beneficiaries in accordance with the regulations if they were cohabiting. This usually requires that the partners have shared a household in the 5 years prior to death or that the surviving partner has been supported to a considerable extent by the insured person or that the surviving partner is responsible for the maintenance of one or more joint children.

What is considered a "joint household"?

According to the Federal Supreme Court, a permanent undivided shared household at a fixed place of residence cannot simply be expected under the heading of a shared household. Such an understanding does not take into account the changed social and economic circumstances. For professional, health or other reasons worthy of protection, life partners often cannot live together without interruption, but often only for part of the week, for example. The term "joint household" must be understood broadly in line with the times. According to the Federal Supreme Court, the decisive factor is that the cohabiting partners have the manifest intention to live their cohabitation as far as possible as an undivided household in the same household (see BGE 137 V 383 E. 3.3).

Is it worth consulting a lawyer to review benefits from a pension fund?

It is worth checking carefully whether claims arise from the life partner's pension fund in the event of death. The amounts involved are often higher, which is why legal fees can quickly pay off. Survivors' benefits can also be claimed if the inheritance is waived.

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