Pension Substitution Rules and Trans People

Warning

The transition arrangements into the new pension system and the introduction of civil partnerships means that trans people born before 6th April 1950 need to think seriously before replacing a marriage annulled under the provisions of the Gender Recognition Act. As will be seen below there is a grave risk of the former spouse losing all rights to pension substitution and category B pension if they were relying on her partner’s contributions and the right to inherit their pension after death.

More general information here about state pensions and trans people.

Description

Where a legal relationship has ended (by divorce/dissolution, or, except where both parties were over pension age at the time, by death) section 48 of the Social Security Contributions and Benefits Act 1992 enables the contribution record of the former spouse or partner to be treated as the beneficiary’s own, to the ”prescribed extent“. The detail of how this is done is set out in regulation 8 of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979. These provisions are what are colloquially referred to as the ”substitution“ rules. They are separate from the rules on Category B pensions.

The substitution rules apply to formerly married men, married women and civil partners in the same way.

Substitution can apply to:

  • any person whose last marriage ended before he reached state pension age and who did not remarry or enter form a civil partnership before that date;
  • any person whose last civil partnership ended before he reached state pension age and who did not form a subsequent civil partnership or marry before that date;
  • any person whose last marriage or last civil partnership ended on or after the date on which he reached state pension age otherwise than by the death of his spouse or civil partner; or
  • a man or woman widowed on or after state pension age, or whose civil partner died when the survivor was at or over state pension age, where the deceased was under pension age when she or he died.

The Problem

The substitution provisions apply whether the person whose contribution record is to be used is male or female, was formerly married or a civil partner. This means if a couple have their marriage/civil partnership annulled using the provisions of the Gender Recognition Act 2004 and one or other does not enter any formal relationship, either can use the other’s contributions to achieve a full pension. This applies even if they choose to continue to live together.

However, should the would-be beneficiary enter another legal relationship before reaching state pension age, the right to use the former spouse’s or civil partner’s contribution record falls away and they would then only have recourse to the Category B provisions to improve their basic state pension entitlement if their own record is deficient. If they have no basic pension entitlement of their own, the Category B pension will comprise around 60 per cent of whatever rate of Category A pension their spouse or partner is entitled to; if they do have some Category A pension of their own it can be combined with the Category B pension up to a maximum of 60 per cent of the standard (full) rate of a basic Category A pension.

Entitlement to a Category B pension for a married man or civil partner is restricted to married men or civil partners whose wives or partners were born on or after 6 April 1950. As entitlement to the Category B pension also requires the contributor to have reached State Pension age, a married man could not qualify for the lower-rate basic pension (the 60 per cent rate) currently available to a married woman until 6 May 2010 at the earliest (this being the date on which a woman born on 6 April 1950 will reach state pension age).

This means that the former wife of a trans woman with whom she subsequently forms a civil partnership before she reaches State Pension age will fall outside the substitution provisions (because she entered another legal relationship before pension age) and will not be entitled to a Category B pension either, unless her civil partner was born on or after 6 April 1950.

The former husband of a trans man would, if the couple formed a civil partnership before the former husband reaches pension age, similarly not be able to make use of the substitution rules and would only be eligible for a Category B pension if his partner reached pension age on or after 6 April 2015 (that is, he was born on or after 6 April 1950).

It is perhaps worth pointing out that for those reaching state pension age on or after 6 April 2010, reliance on the Category B pension is expected to fall since the reduction in the number of qualifying years to 30 will increase the number of people who qualify for a basic pension in excess of the Category B rate.

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