Find out if you are entitled to INSS pension without discount

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Since the 2019 Social Security reform, pensions for death are paid to the families of the deceased insured with the incidence of reductions. Since then, the benefit amounts are calculated according to the number of dependents –such as a widow and underage or disabled children– that the deceased worker had.

Currently, the pension is calculated as follows: the family receives a share of 50% of the pension that the deceased insured person received or would be entitled to if he retired due to disability on the day of death. Other 10% fees will be paid according to the number of dependents. In the case of two dependents, for example, the family will receive 70% of the amount.

However, the text of the reform maintained the payment of pension without discount in case dependents are disabled or disabled. For these people, the pension is also paid for life, unlike what happens to beneficiaries under the age of 45 years.

Despite the legal provision of full payment, social security lawyers inform that the INSS (National Social Security Institute) is applying the reducers to beneficiaries who would be entitled to the full amount. The INSS was contacted to talk about the topic, but did not respond until the publication of this report.

“The INSS often does not analyze the dependent on social security to find out whether or not he fits the hypothesis of invalid in order to have a more beneficial calculation treatment and ends up causing this type of situation”, comments lawyer Rômulo Saraiva.

According to Saraiva, the beneficiary who is in this situation can question the INSS itself or, in case of refusal, seek justice. In the expert’s opinion, the crisis in the INSS service, with delays and a queue that reaches 1.8 million benefits in the country, hinders and there is still administrative resistance in the analyses.

Attorney João Badari, from the Aith, Badari e Luchin office, claims that he had access this month to a case of this type. “The woman receives a disability pension and the INSS deducted 40% of the pension she receives from her deceased husband. I asked for the full benefit to be paid”, she says.

“I honestly don’t see how to lose this, even if we have to file a writ of mandamus. It’s law enforcement. The INSS has already verified the incapacity”, he adds.

Badari explains that it is possible to receive pension for death and disability pension at the same time. In this case, however, the insured will receive the benefit of the highest value in full and the other will be reduced according to the ranges proportional to the minimum wage. If the most advantageous benefit is the pension on death, it must be paid without reductions in the case of the beneficiary who is disabled or disabled.

Pension for death | know the rules

The death benefit is a benefit paid by the INSS to the dependents of a deceased insured

Therefore, the benefit can be received by the deceased person’s partner (provided there was marriage or stable union), by children (natural or adopted up to 18 years or disabled) or by minors who were under the guardianship of the deceased insured

The 2019 Social Security reform established reductions in the value of the pension for death, according to the number of dependents

However, the text of the reform itself determines that, if any of the beneficiaries is “disabled or with an intellectual, mental or serious disability”, there will be no reducer

>> Values ​​after the reform

The benefit paid to the family is defined based on the amount of pension that was paid or on the amount of disability pension to which he or she would be entitled

The family will receive a 50% portion of this benefit, plus quotas of 10 percentage points per dependent, up to a maximum of 100%

Example:

  • Carlos died today and would be entitled to a disability pension of R$5,000
  • He was married and had an underage daughter. They are, therefore, two dependents
  • The family will be entitled to a 50% family share, plus two 10% shares, totaling 70%
  • 70% of R$5,000 is R$3,500. This will be the amount of the death benefit that the family will be entitled to.

>> Time for receiving the pension

Since 2015, the death pension has a duration

The time in which the recipient will receive it varies depending on their age. If the person is over 45 years of age, the benefit is for life

Age (in years) Pension payment term (in years)
Less than 22 3
22 a 27 6
28 a 30 10
31 a 41 15
42 a 44 20
From 45 lifetime

>> If any dependent is disabled or disabled

The reform establishes that, in these cases, the pension for death will be 100% of the pension that the deceased insured received or the disability pension to which he would be entitled on the date of death

In the example presented above, if one of the dependents was disabled or disabled, the family would receive the BRL 5,000, without reductions

It is possible to accumulate the death benefit with a disability pension. In this situation, the beneficiary will have to choose a benefit to receive in full and the other will be reduced according to a calculation applied to the minimum wage ranges

If the person recovers from the condition that left him or her disabled, the pension calculation goes back to having the reducers
Another change when a dependent is disabled is the time for receiving the pension, which, on this occasion, is for life

>> INSS is reducing

Although the law guarantees the full pension for death when there are invalid or disabled dependents, social security lawyers claim that there are cases in which the INSS is improperly applying the reducer

What to do

In case there is a dependent with a disability, the family must gather proof of that person’s medical condition and present it to the INSS
If one of the dependents is retired due to disability, the letter granting this benefit must be attached to the review request

The review request can be:

  • Administrative: That is, when it is done directly to the INSS. In this case, the request can be submitted remotely, via My INSS (website or application)
  • Judicial: When there is no success in the administrative request, the solution is to go to court

Sources: lawyers João Badari, Rômulo Saraiva and report

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