From Recognition to Omission: Legal Guardianship and the (In)security of Death Benefits.

Abstract

The article analyzes the controversy surrounding death benefits for minors under legal guardianship, focusing on the legal gap created by Constitutional Amendment 103/2019, which removed them from the list of dependents. The study, based on a bibliographic and documentary review of laws and jurisprudence, investigates the implications of this omission and seeks solutions to ensure social security protection. The research points out that the lack of a legal provision created legal uncertainty and violated constitutional principles like human dignity and the prohibition of social retrogression. The text highlights the conflict between social security legislation and the Statute of the Child and Adolescent (ECA), which explicitly guarantees this right to the minor. Jurisprudence, notably in Theme 732 of the Superior Court of Justice (STJ), has prioritized the ECA's protective measures. The work also emphasizes the relevance of Theme 1271 of the Federal Supreme Court (STF), which highlighted the importance of the debate. The study concludes that the approval of Law No. 15,108/2025, which reversed the exclusion by equating a minor under guardianship with a child for pension purposes, was crucial. This measure reaffirms the child's social security protection as a fundamental right, requiring a legal interpretation that respects constitutional principles and the state's commitment to social justice.