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STJ Confirms That Stable Union Guarantees Right to INSS Death Pension, Even Without Marriage, Provided That Public and Continuous Coexistence Is Proven.
Brazil has changed. If in the past formal marriage was practically mandatory to validate a family, today millions of couples live in stable union without going to the registry office. According to IBGE, more than 36% of Brazilian families are formed in this model, which has become the norm in many regions of the country.
The Constitution of 1988 officially recognized stable union as a family entity. Since then, the Civil Code and the jurisprudence of the STJ and STF have been expanding the rights of partners, guaranteeing property, succession, and social security protection.
But one of the most sensitive questions is: If one of the partners dies, does the survivor have the right to the INSS death pension even without marriage?
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The Courts’ Response: Yes, There Is a Right
The answer is yes. Both the STJ and the STF have already established that stable union grants the surviving partner the same right to death pension that a formally married spouse would have.
This interpretation is based on Law No. 8.213/1991, which in its article 16 defines as dependents of the insured the spouse, the companion or partner in a stable union, and children under 21 years or disabled.
Therefore, there is no difference: marriage and stable union are equivalent in the social security field.
What Needs to Be Proven
Despite the guaranteed right, the INSS requires proof of the stable union. The law defines that the relationship must be:
- Public: known by family members, neighbors, and the community;
- Continuous and Lasting: it cannot be sporadic or occasional;
- With the Purpose of Constituting a Family: the relationship must go beyond dating or informal cohabitation.
Accepted proofs include:
- Joint declaration on income tax;
- Bank account or joint financing;
- Birth certificate of common children;
- Shared address;
- Testimonies from close people;
- Photos, messages, and digital records that demonstrate coexistence.
Cases Judged by the STJ
One case judged by the STJ involved a woman who lived for more than 15 years with the deceased insured, without formal marriage. Despite the initial denial by the INSS, the court recognized that witnesses and documents were sufficient to prove the stable union. She began to receive a death pension.
Another case involved a same-sex couple, even before the historic STF decision in 2011 that recognized stable union between people of the same sex. The STJ understood that there was public and affective coexistence, guaranteeing the pension to the surviving partner.
These precedents were fundamental in consolidating the jurisprudence we have today.
STF and the Equivalence with Marriage
The Supreme Federal Court played a decisive role in this story. In 2011, when judging ADI 4277 and ADPF 132, the STF recognized same-sex stable union and equated its effects to those of heterosexual union.
This decision paved the way for the INSS to be obliged to grant death pensions to same-sex partners, something that was previously systematically denied.
With this, the Supreme reinforced that dignity and equality are constitutional principles that must guide the interpretation of the law.
The Pension Reform and the New Rules
The Pension Reform of 2019 did not remove the right to death pension for partners in stable union, but changed the duration of the benefit.
Today, the duration varies according to the survivor’s age and the length of the union:
- If the union lasted less than 2 years or the deceased had less than 18 contributions: the pension lasts only 4 months;
- If the union lasted more than 2 years and more than 18 contributions:
- up to 21 years: 3 years;
- from 21 to 26 years: 6 years;
- from 27 to 29 years: 10 years;
- from 30 to 40 years: 15 years;
- from 41 to 44 years: 20 years;
- over 45 years: lifetime pension.
In other words, the right exists, but its duration depends on objective requirements.
When the INSS Denies the Benefit
Despite the established understanding, the INSS often denies pensions when:
- There is insufficient documentary proof of the union;
- The relationship was recent and did not demonstrate stability;
- There were indications of a parallel relationship or one not publicly recognized.
In these cases, the way is to seek the courts, where the tribunals have shown to be more flexible in accepting various types of evidence, including testimonies.
The Social Impact of the Decision
The recognition of stable union as a generator of death pension has a huge social impact:
- Protects millions of families who live outside formal marriage;
- Guarantees minimum income to the surviving partner, avoiding abandonment;
- Reduces inequalities by recognizing the plurality of family arrangements in Brazil.
Experts highlight that, without this right, thousands of people would find themselves in a situation of financial vulnerability after the partner’s death.
A Consolidated Right, But That Requires Proof
The current jurisprudence makes it clear: it is not necessary to marry to have the right to the INSS death pension. But the surviving partner needs to prove that they lived in a stable union, with material and testimonial evidence.
The challenge, therefore, is no longer legal, but evidential. Those who plan to protect their partner can take the initiative by registering documents together or formalizing the stable union at the registry office, although this is not mandatory.
Stable Union and Pension: Equality Among Families
The decisions of the STJ and STF reinforce that Brazil recognizes the diversity of family models. Stable union, whether same-sex or heterosexual, is protected by law.
The right to death pension is one of the most important guarantees of this equivalence. It ensures that no one is left helpless after losing their partner, even if they never signed a paper at the registry office.
More than a legal issue, it is a civilizational achievement that provides dignity and security to millions of Brazilians.
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