Insured people who receive a death pension from the INSS (National Social Security Institute) can waive the quota to have the BPC (Benefit of Continued Benefit), paid to the elderly over 65 and people with disabilities considered to be in a situation of social vulnerability. , as long as they meet the requirements to have the benefit.
The decision was taken by the TNU (National Uniformization Group), of the Federal Special Courts, and should serve as a basis for actions that discuss the issue in Justice.
The thesis established in theme 284 determines that “dependents who receive or who are entitled to the share of pension for death can waive this right in order to receive assistance benefit of continued provision, once the requirements of law n. 8.742/ 1993.”
The trial took place after the INSS insured had his request denied by the TRU (Recursal Class) of the Federal Special Court in Tocantins. The BPC, which is a minimum wage (R$ 1,212 in 2022), had been cut by the INSS after the insured acquired the right to the share of the pension for death.
But the pension for death corresponds to 50% of the benefit of the insured person who died or of the income to which he would be entitled to retire due to disability plus 10% for each dependent.
When the pension is divided between two families, the amount may be less than the minimum wage. According to lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), it is in these cases that the insured can benefit from the judgment.
The right, however, is only conquered after action in a Special Federal Court, which receives cases of up to 60 minimum wages, which gives R$ 72,720 this year. “The request can only be made in the court because the INSS understands the benefit as irrevocable”, says the specialist.
In court, you don’t need a lawyer to file the lawsuit, but Adriane recommends looking for a specialist beforehand so that he can calculate whether or not it is worth giving up the pension quota. “The BPC is temporary and reviewed every two years,” he says.
Furthermore, if per capita income [por pessoa da família] is changed, the insured loses the right to the benefit.
The judge who dealt with the case at TNU, Luciane Merlin Clève Kravetz, also warned policyholders about the possibility of losing the BPC, saying that it is necessary to assess the “repercussion of the waiver” of the pension quota in the specific case of the insured.
WHO IS RIGHT TO BPC
Workers registered in the CadÚnico (Single Registry) who are part of low-income families. For this, the per capita income (per person) must be up to a quarter of the minimum wage, which amounts to R$ 303 this year. It is not necessary to have contributed to Social Security, that is, there is no minimum contribution time requirement.
The benefit is paid to:
- Elderly person aged 65 years and over
- Persons with disabilities, of any age, as long as they undergo an expert examination
The disability can be physical, mental, intellectual or sensory.
Understand the rules of the death pension paid by the INSS
The pension is intended for the dependent of an insured (retiree or worker) after his death. Dependents are: husband or wife, children and stepchildren under the age of 21 or disabled, non-emancipated parents and siblings, under 21 or disabled.
Until 2015, the pension was for life, paid without a grace period, which is the minimum time of contribution to have a benefit, and with no requirement for a minimum time of union.
After Law 13,135, of June 17, 2015, the benefit became temporary depending on the age of the widow or widower on the date of death. In addition, if the marriage or stable union was less than two years old, the pension is only paid for four months.
With the 2019 Social Security reform, the calculation changed and was no longer 100% of the benefit of the insured person who died or what would be paid if he retired due to disability and became 60% plus 10% for each dependent. A childless widow, for example, receives 60%, capped at 100%.
When the children turn 21, their quotas no longer revert to the widow or widower.
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