Survivors' Benefits - Minimum Duration Of Marriage

Author:Ms Anna Schenke
Profession:Heuking Kuehn Lueer Wojtek PartGmbB

A clause in a preworded pension commitment stipulating a minimum of ten years of marriage as per the date of death as a prerequisite for the disbursement of survivors' benefits violates German general terms and conditions law and is thus void and invalid.

Facts of the case

The plaintiff was married to the defendant's employee for four years before said employee passed away in April 2015. The pension plan agreement entered into by and between the employee and the defendant stipulated widow's benefits which, according to Sec. 4(2) lit. a of the agreement would not be disbursed to widows unless they had been married with the deceased employee for at least ten years prior to his death. The plaintiff's lawsuits aims at a ruling in which the defendant is ordered to disburse the widow's benefits.

Neither before the labor court nor before the regional court was the plaintiff successful with her lawsuit.


The plaintiff's appeal before the BAG, however, was successful. The BAG is of the opinion that the above-mentioned clause is in violation of Sec. 307(1) s. 1, (2) No. 2 German Civil Code (Bürgerliches Gesetzbuch; BGB) and thus void and invalid. According to the BAG, the restriction of widow's benefits to widows married to the deceased employee for at least ten years is an unreasonable discrimination against the employee. Such restriction could not be justified by claiming that there were justified and equitable employer interests.

In principle, the employer could have a justified interest in mitigating financial risks triggered by survivors' benefits. In this case, however, the stipulated restriction was not based on risk considerations. Corporate pension benefits are deemed remuneration paid to the employee which he/she has accrued regardless of the duration of his/her marriage. In addition, the corporate pension benefits should also be deemed consideration for years of service. Hence, there is no intrinsic connection between the employment and the duration of the marriage which is part of the personal lifestyle.

Neither does the employer have a justified interest in this case in respect of preventing so-called marriage for maintenance (Versorgungsehe). While such interest was basically legitimate and would have to be recognized, a period of ten years was deemed too long. This could in particular be derived from a comparison with the legal regulations regarding the statutory pension insurance (Sec. 46(2a) Vol. VI of...

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