STJ (Brazil’s Superior Court of Justice) Bars Loosening the Low-Income Test for Auxílio-Reclusão in Imprisonments After MP (Provisional Measure) 871/2019 (Tema 1.162), November 2025

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

In a repetitive appeals judgment (Tema 1.162), Brazil’s Superior Court of Justice held that the low-income requirement for auxílio-reclusão (the social security allowance paid to the dependents of an imprisoned insured worker) cannot be relaxed for imprisonments that occurred after Provisional Measure 871/2019. The thesis, published in November 2025, reaffirms that the benefit depends on the last contribution salary (the wage on which social security contributions were calculated) of the imprisoned insured worker, within the limit set by regulation. It rules out alternative measures of income, such as the economic situation of the dependents.

What the STJ Decided in Tema 1.162

The ruling established that, for triggering events after Provisional Measure 871/2019 took effect (later converted into Law 13.846/2019), low income is determined by an objective rule. The benchmark is the imprisoned insured worker’s last contribution salary, which cannot exceed the ceiling that an interministerial ordinance sets periodically. The Court held that there is no room to replace this statutory test with case-by-case assessments of the financial condition of the inmate’s family.

A decision in a repetitive appeal is binding on the lower courts, which had been reaching conflicting results. Before the issue was settled, some rulings allowed income to be measured through indirect evidence, such as the dependents’ lack of assets or the family’s claimed destitution. With this thesis, those grounds no longer prevail for more recent imprisonments, and the lower courts must apply the strict statutory test.

The uniform standard matters directly to Brazil’s National Social Security Institute (INSS) and to insured workers. Cases that had been stayed while the question was pending can now resume under the Court’s guidance. The result should bring consistency to both approvals and denials, offering predictability on an issue that has generated a large volume of lawsuits in recent years.

The Low-Income Test After MP 871/2019

Article 80 of Law 8.213/91 has always conditioned auxílio-reclusão on the insured worker’s low income. Provisional Measure 871/2019 tightened the requirements by requiring that the imprisonment be served in a closed regime and by creating a minimum waiting period of contributions. Before that change, the benefit was available under less restrictive regimes and had no waiting period, which widened the pool of beneficiaries.

The income limit is not the minimum wage. It is a separate amount, updated every year by interministerial ordinance. This ceiling determines who qualifies as a low-income insured worker at the time of imprisonment. If the last contribution salary exceeds the limit in force on the date of imprisonment, the dependents are not entitled to the allowance, even if they are in real financial hardship.

The rule also makes clear that the last contribution salary is what counts, not the average of contributions over a working lifetime. This time frame avoids distortions and simplifies the analysis, but it makes the most recent record before incarceration critical. Small changes in pay right before the imprisonment can decide whether the worker falls within the limit.

This distinction is the core of the ruling. Auxílio-reclusão is not welfare assistance for the poor. It is a social security benefit tied to the loss of support caused by the incarceration of someone who was contributing. That is why the legislature chose an objective benchmark based on contribution history, rather than a snapshot of the dependents’ income at the time of the imprisonment.

The uniform standard matters directly to INSS and to insured workers.

The Other Requirements for Auxílio-Reclusão

Besides the income limit, the benefit requires insured status on the date of imprisonment. Someone who had lost that status through a prolonged gap in contributions cannot pass the right on to dependents. Insured status is maintained under the general grace-period rules in social security legislation.

The waiting period was introduced by Law 13.846/2019, which set a minimum number of monthly contributions before the person is imprisoned. On top of that comes the closed-regime requirement: imprisonment in a semi-open or open regime, as well as pretrial detention that does not progress to a closed regime, generally does not give rise to the allowance under the current rules.

Dependents must also prove the family relationship required by law, in the order of priority set by the general social security system (RGPS). A spouse, a partner, and minor or disabled children fall in the first class. The existence of dependents in a higher-priority class excludes the classes below, which shapes how the administrative claim and any lawsuit should be prepared.

Why Loosening the Test Was Rejected

In barring flexibility, the Superior Court of Justice favored legal certainty and the literal text of the law. The Court reasoned that allowing variable criteria would lead to unequal decisions in identical situations and undermine equal treatment of insured workers. The ceiling set by ordinance exists precisely to make eligibility objective and to reduce litigation over the concept of low income.

The court also stressed that it is up to the legislature, not the judiciary, to redraw the boundaries of the benefit. Any broadening of auxílio-reclusão requires a change in the law, not an expansive interpretation. This limit reinforces the separation between social security policy, which is set by statute, and the judicial application of the rules in force, a recurring theme in debates over social benefits.

The bar does not mean the evidence is set in stone. Insured workers and their dependents can still dispute the correct amount of the last contribution salary, possible recording errors, and the date of imprisonment itself. What the thesis prevents is replacing the statutory test with a free-form judgment about the family’s poverty. It does not prevent correcting mistakes in the objective facts of the case.

Practical Effects for Dependents and Lawyers

For families, the practical consequence is the need to show, with documents, that the imprisoned insured worker’s last contribution salary was within the limit on the date of imprisonment. A denial decision usually points to exactly this issue, which shapes the strategy for an administrative appeal or a lawsuit in the federal courts.

Practitioners in this field should check three key elements: the exact date of imprisonment, the regime set in the criminal decision, and the amount of the last contribution salary recorded in the National Social Information Registry (CNIS). These facts determine eligibility. For imprisonments before Provisional Measure 871/2019, more flexible interpretations may still apply, depending on the transition rule that governs each situation.

It is worth watching how the regional federal courts and INSS themselves handle pending cases. The weight of a repetitive-appeal ruling tends to speed up judgments and standardize denials where the objective test is not met. That narrows the room for destitution arguments in recent imprisonments and encourages negotiated solutions where the reference amount is in doubt.

Frequently Asked Questions

Does auxílio-reclusão take the family’s income into account?

Not for imprisonments after Provisional Measure 871/2019. The statutory test looks at the imprisoned insured worker’s last contribution salary and compares it to the limit set by ordinance on the date of imprisonment. The dependents’ economic situation is not part of the low-income assessment, as the Superior Court of Justice reaffirmed in Tema 1.162.

Does the decision apply to older imprisonments?

The thesis covers triggering events that occurred after Provisional Measure 871/2019. For earlier imprisonments, the analysis looks to the wording then in force and the interpretations that applied at that time, which can lead to a different outcome. That is why the exact date of imprisonment is decisive in determining which legal regime applies.

What should you do if your claim is denied?

The first step is to examine the reason given in the decision, especially the amount of the last contribution salary and the regime in which the sentence is being served. With that information, you can assess whether an administrative appeal or a lawsuit is viable. Gathering documents such as the CNIS statement and the certificate of the inmate’s custody status strengthens the claim.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.