Justice defines that Social Security Courts must judge special pension requests for femicide orphans
The Regional Uniformization Panel of the Federal Special Courts of the 4th Region (TRU/JEFs) has consolidated a fundamental understanding for the social protection of minors in situations of extreme vulnerability: the competence to process and judge requests for special pensions for femicide orphans belongs to the Federal Courts with social security or welfare specialization. The decision, which standardizes the interpretation of Law 14.717/2023, removes the judgment from the common Civil Courts, ensuring that magistrates familiar with the Social Security system analyze the demands of these dependents.
The Legal Nature of the Benefit and Law 14.717/2023
To understand the TRU4’s decision, it is necessary to analyze the origin and purpose of Law 14.717/2023. This legal diploma was established to offer immediate financial support to the children and dependents of women victims of femicide, seeking to mitigate the devastating impact that this crime causes on the family nucleus and the development of the children and adolescents involved.
Although it is technically called a “pension”, the legal nature of this benefit is not social security stricto sensu, but rather welfare. Unlike the common death pension, which requires the deceased insured to be contributing to the INSS, the special pension for femicide orphans is independent of the victim’s prior contributions. The focus is on socioeconomic vulnerability and the tragic fact of the crime.
“The special pension for femicide orphans has an umbilical relationship with social assistance, resembling in operational and budgetary terms the Continuous Benefit (BPC/LOAS).”
The Concrete Case: The Conflict of Jurisdiction
The legal debate gained momentum after a conflict of jurisdiction raised by the 2nd Federal Court of Passo Fundo (RS). In the case in question, the legal guardian of three children (aged between two and seven years), whose mother was a victim of femicide committed by the children’s own father in 2024, filed the action after an administrative denial by the INSS.
The social security entity had rejected the benefit claiming that the mother did not have “insured status” on the date of death. However, when analyzing the case, the magistrates observed that the requirement of insured status is a criterion for contributory social security benefits, while the new law only requires that the per capita family income is equal to or less than a quarter of the minimum wage.
Why were the Social Security Courts chosen?
The choice for the Social Security and Welfare Courts was not arbitrary. The TRU4 collegiate, under the rapporteurship of federal judge Oscar Alberto Mezzaroba Tomazoni, based the decision on three essential technical pillars:
- Operationalization by the INSS: The law expressly assigns to the National Social Security Institute the responsibility to manage, analyze and pay the benefit.
- Source of Funding: The payment comes from the Social Security budget, specifically from the item destined for social assistance, according to article 3 of Law 14.717/2023.
- Selectivity Criterion: As in the BPC, the concession is linked to income and vulnerability criteria, technical expertise that social security judges have in their judicial routine.
Impacts for Advocacy and for Society
This decision brings significant legal certainty for lawyers working in the area. Filing the action in the correct court from the beginning avoids procedural annulments, declinations of jurisdiction and, consequently, unjustified delays in the delivery of a benefit that has an urgent food character.
In addition, the specialization of social security judges allows a more sensitive and technical analysis of the concepts of family nucleus and misery. For the beneficiary children, this means that the Judiciary is structured to respond with the speed that the situation of orphanhood requires.
Requirements for the concession of the special pension
It is important to highlight the legal requirements that must be proven in these actions before the Social Security Courts:
- Death by femicide: Proof that the mother’s death resulted from a gender crime, under the terms of criminal law.
- Age: The beneficiary must be under 18 years of age on the date of death.
- Family Income: The monthly per capita income of the family group must be up to 1/4 of the minimum wage.
- Prohibition of Accumulation: The benefit cannot be accumulated with pensions from social security regimes (RPPS or RGPS).
Conclusion
The pacification of this understanding by the TRU4 reinforces the protective character of the Brazilian Social Security system. By directing femicide orphans to the Federal Social Security Justice, the court recognizes that the State must act in an integrated manner, using its most robust structure of welfare analysis to support those who lost their providers in contexts of extreme violence.
The decision now serves as a guideline for the entire South of the country and as a relevant precedent for other federal regions, ensuring that the Law is an instrument of reparation and survival for the collateral victims of domestic violence.