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O Governo iniciou o ano de 2019 com a edição da Medida Provisória nº 871, de 18 de janeiro de 2019, a qual foi, posteriormente, convertida na Lei nº 13.846/2019.
A Medida trouxe várias mudanças na legislação em vigor, mais especificamente, nas Leis 8.112/90, 8.212/91 e 8.213/91 e, dentre elas, um impacto de suma relevância ao interesse social: As provas de União Estável e Dependência Econômica.
Lei 8.213/91 anterior à Lei 13.846/19
Não havia os parágrafos 5º, 6º e 7º no artigo 16.
Como era o entendimento:
Sabe-se que a pensão por morte é um benefício devido aos dependentes dos Segurados do Regime Geral da Previdência Social – RGPS, sendo assim, a pensão por morte é devida àquele que tem vínculo, apenas, com o segurado e não com o RGPS.
O rol de dependentes para fins previdenciários consta no artigo 16 da Lei 8.213/91 e de acordo com o § 4º, a dependência econômica das pessoas indicadas no inciso I era presumida e a dos demais é que deveria ser comprovada. Portanto, o entendimento pacificado nos Tribunais era de que a demonstração da união estável e da dependência econômica poderiam ser feitos por qualquer meio de prova, previsto em lei ou moralmente legítimo (art. 369, CPC/2015), inclusive prova exclusivamente testemunhal. Tanto, que foi criada a Súmula nº 63 da Turma Nacional de Uniformização dos Juizados Especiais Federais deliberando sobre o tema: “A comprovação de união estável para efeito de concessão de pensão por morte prescinde de início de prova material”.
Ocorre que o INSS exigia em seu Regulamento (Dec. 3.048/99, art. 22, § 3º), a apresentação de prova documental, num mínimo de três documentos, em oposição com o entendimento conferido pelo Judiciário, o que geravam muitas lides judiciais.
Lei 8.213/91 com as alterações da Lei 13.846/19
Art. 16 – Acrescidos os parágrafos 5º, 6º e 7º:
Hoje, as exigências aumentaram e a demonstração de união estável e de dependência econômica exigem início de prova material contemporânea aos fatos, produzida em período não superior a 24 (vinte e quatro) meses anterior à data do óbito, não sendo mais admitida a prova exclusivamente testemunhal.
§ 5º As provas de união estável e de dependência econômica exigem início de prova material contemporânea dos fatos, produzido em período não superior a 24 (vinte e quatro) meses anterior à data do óbito ou do recolhimento à prisão do segurado, não admitida a prova exclusivamente testemunhal, exceto na ocorrência de motivo de força maior ou caso fortuito, conforme disposto no regulamento.
§ 6º Na hipótese da alínea c do inciso V do § 2º do art. 77 desta Lei, a par da exigência do § 5º deste artigo, deverá ser apresentado, ainda, início de prova material que comprove união estável por pelo menos 2 (dois) anos antes do óbito do segurado.
§ 7º Será excluído definitivamente da condição de dependente quem tiver sido condenado criminalmente por sentença com trânsito em julgado, como autor, coautor ou partícipe de homicídio doloso, ou de tentativa desse crime, cometido contra a pessoa do segurado, ressalvados os absolutamente incapazes e os inimputáveis.
Por Inês Behrens
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