A retiree must return 5,391.32 euros to Social Security after simultaneously collecting a retirement pension of 2,536.52 euros and a widow’s pension of 490.12 euros per month, that is, a pension of 3,026.64 euros. The Superior Court of Justice of Asturias explains in the ruling that the two benefits were incompatible, since this was regulated in article 20 of the Ministerial Order of April 3, 1973, by requiring that the beneficiary not be the holder of any other Social Security pension.
Since 1993, Secundino had collected a widow’s pension whose amount was 490.12 euros per month and in 2022 he began to collect the retirement pension for absolute permanent disability from the Special Coal Mining Regime and whose amount was 2,536.52 euros per month.
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Social Security explained that it could not collect both pensions, since “one of the requirements for said recognition is that the actor was not the holder of any other Social Security pension when he was receiving the widow’s pension.” Even so, months later, when he requested the revaluation of the pensions, Social Security realized this incompatibility, so it told this pensioner that he had to decide between maintaining the new retirement or keeping the widow’s pension. Since he didn’t say anything, Social Security chose to approve the largest amount, which was retirement.
Even so, later, in April 2023, Social Security proceeded to suspend the widow’s pension, but as it was collected for several months without being entitled to it, the General Treasury proceeded to claim 5,391.32 euros in undue collections.
Despite the allegations made to allow him to collect both pensions at the same time, the administration rejected his claim, so Secundino decided to go to court to defend his right to maintain both benefits.
I couldn’t collect both pensions at the same time.
Both in the first instance, in the Social Court number 4 of Oviedo, and later the Superior Court of Justice of Asturias, ruled in favor of the National Social Security Institute. Both courts agreed that the two pensions were incompatible, since article 20 of the Ministerial Order of April 3, 1973 (which can be consulted in this BOE) expressly requires that “the pensioner is not the holder of any other Social Security pension or that he or she renounces it.”
In the appeal presented to the TSJ, the retiree defended that article 223 of the General Social Security Law should be applied, which allows the widow’s pension to be made compatible with other incomes, also alleging the principle of normative hierarchy as it is a later and higher-ranking law. Despite what I said in those regulations, the court recalled that this issue “had already been resolved in previous rulings” from 1995, 1997 and 2017, where it had been ratified that the benefit of article 20 is incompatible with any other pension, even those caused by a different person, as occurs in cases of widowhood.
Thus and for everything explained, the key in this ruling is that, according to the Chamber, is that this special regime grants a more advantageous benefit than ordinary retirement, and precisely for this reason it establishes the condition of exclusivity. As the TSJ explains, “if it is an unavoidable condition to benefit from the system contained in article 20 that the interested party not be the holder of another pension, it can be deduced that the non-compatibility of that benefit with another pension is the inspiring principle of this regulation, whatever the origin and event causing it.”
In short, the ruling confirms that he cannot make the mining pension compatible with the widow’s pension, so he must return 5,391.32 euros for the widow’s pension improperly collected.