Can dissolving the marital estate affect the right to a survivor's pension?

By: Catalina Sánchez Cárdenas

Spouses can dissolve and liquidate their marital estate (sociedad conyugal) without divorcing or ceasing to live together. This allows them to separate their assets and divide their common property while the marriage remains in force. A recent decision by the Colombian Supreme Court of Justice shows that this financial decision can also affect the recognition of a survivor's pension.

This pension seeks to provide financial protection to the beneficiaries of a deceased member or pensioner. For a spouse or permanent partner, one of the requirements is to prove cohabitation, as a general rule, during the five years prior to the death.

However, case law has recognized an exception for spouses who are separated de facto, that is, those who, although still married, have stopped living together. In these cases, it is possible to prove five years of cohabitation at any point during the marriage, without those years having to be the ones immediately preceding the death.

For several years, the Supreme Court held that, to qualify for this exception, it was enough to prove those five years of cohabitation and that the marriage was still in force, regardless of whether the marital estate had been dissolved. This interpretation rested on distinguishing the spouses' personal duties of solidarity and mutual support from the economic effects of the marital estate.

In ruling SL807-2026 of July 29, 2026, the Labor Chamber expressly reversed this position. The Court held that a de facto separated spouse who claims the pension based on prior cohabitation must also prove that the marital estate was in force at the time of death.

The ruling decided the case of a woman who had lived with her spouse for approximately twelve years; although they never divorced, they had dissolved and liquidated their marital estate and stopped living together during the last months of the pensioner's life. After her spouse's death, the woman claimed the survivor's pension, but it was denied.

The Court based this change on Article 47 of Law 100 of 1993, which requires the marital estate to be in force for this exception. It also considered that, once cohabitation has ended and the marital estate has been dissolved, the mere existence of the marriage does not justify granting a pension based on prior cohabitation.

This does not mean that dissolving the marital estate automatically entails losing the right. If the spouses continue to live together, the dissolution does not, by itself, prevent the benefit from being granted. The new requirement applies to those who, in addition to having dissolved their marital estate, were separated de facto at the time of death.

The difficulty arises when the dissolution is driven solely by asset-planning reasons, without the spouses seeking to separate or divorce. If cohabitation later ends, that decision could prevent the pension from being granted, even if they had lived together for more than five years and the separation occurred shortly before the death.

At the same time, this new requirement could encourage those who have been separated de facto for years to keep their marital estate in force, even though cohabitation and their common financial project have ended, solely to preserve the possibility of claiming the survivor's pension.

The marital estate may be dissolved while cohabitation continues, or remain in force when life together ended years ago. Under the new interpretation, whether it is in force can be decisive for granting the pension to a de facto separated spouse, even though it does not always reflect the reality of the marital relationship.

Originally published in Spanish in the Consultorio section of Asuntos Legales on November 14, 2026.