The existence of common children as rights attributive criteria relating to widowhood: a questionable criteria from theperspective of the prohibition of discrimination

Abstract

In recent years, the legislator has occasionally resorted to there being joint children as a criterion to attribute widowing rights. The Constitutional Court declared one such assumed cases as being unconstitutional as it understood that such a demand lacked any objective and reasonable justification and committed discrimination. After firstly, presenting the normative progress made in protecting the widowing state in our Social Security System, this work analyses if this same criterion is also unconstitutional in other assumed cases. It also focuses on the possible application of the "indirect" discrimination doctrine as this demand, despite its apparent neutrality, has negative effects, particularly in relation to homo- and transsexual partners.