o reconhecimento da filiação socioafetiva post mortem nos casos de pensão por morte do RGPS

Abstract

Socioaffective filiation constitutes a crucial legal innovation, as it is a consequence of the de-patrimonialization of family institutions. It links the idea of parenthood to the concept of affection, distancing it from an ideal tied to consanguinity. Thus, its conception is based on objective factors of care, protection, and dignified development of the infant. Its recognition reverberates in the benefits granted by the General Social Security Regime and has a more profound impact on proceedings aimed at granting survivor's pension benefits, as this is a benefit intended to protect the dependents of the deceased insured. Given the lack of a specific law addressing socioaffective filiation, disputes touching on this topic are guided by doctrinal understandings, case law, and principles and norms found in the 1988 Federal Constitution, the 2002 Civil Code, and the Child and Adolescent Statute. The objective of this monograph was to verify whether the socio-affective children of beneficiaries under the General Social Security Regime are receiving assistance in their claims for survivor's pensions even when their affiliation is only recognized after the beneficiary's death. The approach adopted was hypothetical-deductive, guided by civil, constitutional, and jurisprudential concepts. To this end, the methodology used was deductive, based on an analysis of the survivor's pension benefit and the phenomenon of socio-affective affiliation, culminating in the analysis of legal proceedings in which the socio-affective relationship was incidentally recognized in the survivor's pension process. The data presented were collected through bibliographic research and the investigation of legal, jurisprudential, and doctrinal texts, using the indirect documentation technique as a research tool. Therefore, it was possible to conclude that the regulatory gap does not prevent the realization of the right to receive the survivor's pension by socio-affective children. This lack of a specific law is overcome by a hermeneutic effort in which law enforcers interpret pre-existing norms in light of constitutional principles. Thus, the requirements inherent to receiving the aforementioned benefit and the conditions that characterize the existence of socio-affective filiation are combined. Given these factors, the judiciary has treated socio-affective and biological children equally, thus embodying the constitutional principle of equality between children. Regarding the position of the National Social Security Institute, it was found that this principle was not always observed, and sometimes the status of socio-affective children is questioned even when there is compelling evidence.