Facts
A. and D. were married on March 6, 1980 in Italy. D. worked in tunnel construction and was insured under the occupational pension plan of Implenia since August 1, 2001. Due to a work accident in November 2001, D. received a disability pension from the Swiss Accident Insurance Fund (Suva) from November 2005 onwards. The IV-Office of the Canton of Graubünden granted him a full disability pension (degree of disability: 100%) from November 1, 2002 to October 31, 2005, and a half disability pension (degree of disability: 54%) from November 1, 2005. Implenia Vorsorge did not pay any benefits at any time due to overcompensation. In May 2006, the marriage between A. and D. was divorced. D. passed away on June 10, 2009.
A. filed a subsequent claim against D.'s estate for the supplementation of the divorce judgment regarding the pension assets. The District Court E. ordered the equal division of the accumulated termination benefit and referred the matter for the implementation of the pension equalization to the cantonal occupational pension court.
The Administrative Court of the Canton of Graubünden refused the division of the pension assets, as the disability pension case for the deceased D. had already occurred on November 1, 2002, although he had never received any disability benefits from the occupational pension due to overcompensation. The Administrative Court referred the matter to the District Court E. for the determination of an appropriate compensation pursuant to Art. 124 para. 1 ZGB.
Considerations
The Federal Supreme Court confirmed the decision of the Administrative Court. It stated that the disability pension case does not occur with the underlying incapacity for work, but with the beginning of the entitlement to a disability pension. This also applies if the insured person has never received disability benefits from the occupational pension due to overcompensation.
The Federal Supreme Court explained that Art. 26 para. 2 BVG represents a temporal overcompensation…