STF validates calculation that results in a reduction in the value of the INSS death pension
According to the established calculation, the pensioner is entitled to receive 50% of the deceased's retirement amount, plus a further 10% for each dependent. The Ministers' analysis is based on the modification of the Social Security reform, which took place in 2019.
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The Federal Suprene Tribunal Court (STF) decided, by a vote of 8 to 2, that the rule established by the pension reform in 2019, referring to the calculation of the death pension of the INSS insured person who dies before retiring, is constitutional. According to this rule, the widowed spouse has the right to receive 50% of the deceased insured person's retirement, considering both the amount he would receive if he were already retired and the disability retirement amount to which the insured person would be entitled. In addition, there is an additional 10% per dependent, up to a maximum limit of 100%.
Decision
Counting, National Confederation of Salaried and Salaried Rural Workers, was responsible for presenting the action that was judged by the Supreme Court. The entity argued that the new rule caused damage to the dependents of the insured, violating the Constitution, which establishes the contributory nature of Social Security and guarantees dignified protection to the family of the deceased, especially with regard to social security protection.
The Supreme Court accepted the thesis presented by the rapporteur, Luis Roberto Barroso. As argued by the minister, death pensions are not intended to preserve the deceased insured person's standard of living, therefore, he voted to reject the action. The rapporteur stated that this change does not constitute any violation of the Constitution.
“It must be borne in mind that death pensions are not intended to maintain the standard of living achieved by the deceased insured person. Nor do they have the nature of an inheritance, since they are not part of the settlor's assets. In reality, they are a breath of fresh air – normally temporary – to allow dependents to reorganize themselves financially, seek new alternatives and be able, after all, to provide sufficient resources for their own subsistence”, stated Barroso.
According to the minister, the regulations established in 2019 do not violate the prohibition on confiscation, the right to property or proportionality. Ministers Dias Toffoli, André Mendonça, Gilmar Mendes, Alexandre de Moraes, Cármen Lúcia, Luiz Fux and Kássio Nunes Marques agreed with Barroso's position. However, ministers Edson Fachin and Rosa Weber disagreed with the rapporteur.
“The maintenance of the calculation method does not allow, if not makes it impossible, the family and financial reorganization after death, increasing social vulnerability. In practice, therefore, there is unconstitutional and unfair discrimination applied by the constitutional reform”, said Fachin.
The analysis of the action took place in the virtual plenary of the Court, where ministers only registered their votes. The decision was delivered in a virtual session and was completed last Friday (23).
