A relevant judicial precedent related to pension fund plans was published in June by the Superior Court of Justice (STJ). When judging the   motion  for divergence in interlocutory appeal on a special appeal No. 925.908/SE (https://processo.stj.jus.br/SCON/GetInteiroTeorDoAcordao?num_registro=201601240635&dt_publicacao=07/06/2024">EAREsp 925.908/SE), the Second Section of the STJ held that the legal dependent of the deceased former participant of a private pension fund plan can receive a surviving spouse pension benefit, even if he or she has not been registered as a beneficiary of the plan by the plan holder. For this to happen, however, there must be proof that there is no damage to the closed supplementary pension entity (EFPC).

This ruling is relevant, as it seeks to put an end jointly with the divergence of understandings that has arisen in recent years between the two  judgingpanels that make up the Second Section of the STJ:

  • the Third Judging Panel allowed the dependents of the deceased former participant to receive pension benefits and savings upon death, even if they had not been indicated during life by the deceased;
  • the Fourth Judging Panel had been taking the position that the beneficiary must been expressly indicated by the deceased former participant.

What permeates the discrepancy between the Third and Fourth Judging Panels are, mainly, two issues:

  • the financial-actuarial balance of the benefit plan; and
  • the social function of supplementary social security.

In general, for the Fourth Judging Panel, the inclusion of a non-indicated beneficiary may compromise the liquidity and solvency of the benefit plan. This is because, according to the judging Panel, the reserves constituted by the EFPC do not consider the actuarial risks of the entry of a dependent not enrolled in the benefit plan.

The Third Judging Panel, on the other hand, understood that the express designation made by the deceased former participant is a simple fair notice and should not prevail over the social function of the supplementary social security. With this, it sought to guarantee a source of support for the deceased’s legal dependent.

In the judgment of EAREsp 925.908/SE, the understanding of the Third Judging Panel prevailed. The Second Section concluded, therefore, by majority vote, that the suggestion of the legal dependent is not a condition for receiving the surviving pension benefit. If economic dependence is proven and there is no proof of damage to the benefit plan, it would be up to the EFPC to pay the surviving dependent who has not been named.

In our view, this precedent cannot be uniformly applied to all cases in which the payment of a surviving pension to a third party not indicated by the deceased former participant is discussed. There are several situations that do not support a general and uniform decision.

The application of the aforementioned judgment in other cases must take into account the type of the benefit plan, since the repercussions of embracing a beneficiary late are different in defined benefit and defined contribution plans.

In the same format, one cannot fail to evaluate the rules of the regulation for the inclusion of beneficiaries and payment of pension and savings benefits for death, nor the financial implications of this inclusion for the benefit plan.

Considering the multiplicity of benefit plans, with very varied regulations, rules and funding sources, it is essential that the jurisdictions and the STJ make the necessary distinctions for each specific case. In this way, it is will avoid plans being forced to pay benefits for which there was no prior funding.

The Banking, Insurance and Finance practice  can provide more information on the implications of the judgment.