Reaffirming the DER: Contributions Made After You Apply

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

Contributions paid after you apply for retirement are not wasted time. Reaffirming the DER moves the application’s filing date forward to the day you met the requirements, and Tema 995 of the STJ (Brazil’s Superior Court of Justice) set the limits of that option.

The problem that reaffirming the DER solves

Every retirement application is filed in the expectation that contribution time, the minimum contribution period, and age are already complete on that day. Often they are not. A denial because you are a few months short on contributions, a few days short on age, or a few points short on the sum of age and contribution time is one of the most common outcomes of administrative review.

After a denial, the insured person sees two options. The first is to file a new application once the requirement is met, giving up everything already submitted and going back to the end of the line. The second is to contest the denial even though the requirement really was missing on the filing date, a path that tends to end in dismissal of the claim.

There is a third path. DER stands for Data de Entrada do Requerimento, the date the application was filed, and to reaffirm it means to move it forward to the day the requirements were met. Contributions paid after the original filing stop being irrelevant and become part of the calculation that supports the grant.

The logic is simple. If the right did not exist in March but did exist by November, there is no reason to force the insured person to start over. The original application stays in place, and only its reference date moves.

This situation should be kept apart from another that only looks similar. When the right already existed on the filing date and only the proof surfaced later, there is no reaffirmation at all. What is at issue there is the date from which payments are owed, a subject governed by its own rules. Reaffirmation presupposes that the requirement was in fact missing.

What Tema 995 of the STJ decided

The dispute reached Brazil’s Superior Court of Justice through the repetitive appeals procedure. In Tema 995, the First Section held that it is possible to reaffirm the DER “to the moment when the requirements for granting the benefit were met,” even if that moment falls between the filing of the lawsuit and the delivery of the judgment in the ordinary instances (STJ REsp 1.727.063/SP).

Two provisions of the 2015 Code of Civil Procedure support the conclusion, and the thesis itself names them. Art. 493 requires the judge to take into account any fact that creates, modifies, or extinguishes the right and that occurs after the lawsuit is filed. Art. 933 addresses the same situation at the appeal stage, requiring the parties to be heard on the supervening fact before the decision is issued.

The thesis contains a qualification that often goes unnoticed: reaffirmation operates “with regard to the cause of action.” This means the later time serves to complete the requirement the lawsuit was already disputing. It cannot open the door to an entirely new claim with different grounds and a different set of facts.

The ruling also settled the question of attorney’s fees. When the INSS (Brazil’s National Social Security Institute) acknowledges the claim in light of the new fact, fees cannot be awarded against the agency as the losing party. The reasoning is consistent with the rest of the thesis: on the filing date the right truly did not exist, and the agency’s administrative resistance was legitimate.

Reaffirming the DER does not create a retroactive right. It acknowledges that the right arose after the filing, and the price shows up in the back payments.

That is why reaffirmation is a strategic decision, never an automatic procedural step. It resolves the missing requirement and, in the same act, shortens the period for which the benefit is paid retroactively. Anyone who asks for it without weighing that effect may win the case and receive far less than expected.

The new DER becomes the benefit start date

This is the point that most surprises people who follow a case from the outside. Reaffirming the DER is not a formal calendar adjustment. The benefit start date, known as the DIB, becomes the new DER and is no longer the day of the original filing.

Consider an example. An application is filed in March and denied because the insured person is eight months short of the minimum contribution period. The insured person keeps contributing and meets the requirement in November of the same year. Once the DER is reaffirmed, the benefit is owed from November. The period from March through October generates no payments, because during those months there was no right to any benefit yet.

The arithmetic is straightforward. The further the day the requirements were met is from the original filing, the smaller the block of retroactive amounts. In cases where the requirement is not met until the lawsuit is already under way, the back payments may shrink to a few months, or to almost nothing.

There is also a less visible effect, which touches the amount of the initial monthly benefit. With the DER moved, the base calculation period moves as well, and contributions paid after the application enter the average of the contribution wages. High contributions raise that average; low contributions lower it.

What happens to the back payments

Back payments, in everyday terms, are the installments that fell due between the benefit start date and the date the benefit is actually put into payment. With a reaffirmed DER, the count starts on the new date, and everything before that mark drops out of the calculation entirely.

Inflation adjustment and interest are applied under the criteria that govern judgments against the public treasury for the period of each installment, a matter that reaffirmation does not change. What reaffirmation changes is the starting point of the calculation, and that shift usually weighs more than any index.

The five-year statute of limitations, which reaches installments that fell due more than five years before the lawsuit was filed, rarely has any practical effect in these cases. When the DER is moved forward, the new start date tends to be recent, so no installment is old enough to be caught by the limitation period.

Attorney’s fees deserve separate attention, because they change the economic result of the case. When the INSS acknowledges the claim because of the new fact, the fee award is not imposed on the agency. The calculation of what you stand to gain from the case should therefore not count on that addition when reaffirmation is the route taken.

When reaffirming helps and when it hurts

The first question to answer is whether the requirement really was missing on the filing date. If there was already enough time on the original DER, reaffirming would mean giving up months or years of back payments for no reason. The correct course in that case is to defend the original DER and present reaffirmation only as an alternative request.

That alternative framing is the safest in courtroom practice. The insured person asks for the benefit with the original date and, if the court finds the requirements were missing, asks for reaffirmation to the moment they were met. That way neither possibility is lost through omission.

The second point is the calendar of the transition rules. Some eligibility criteria become stricter each year, with progressive increases in the minimum age, the points total, or the additional time required. A DER moved into the following year may fall under a tougher requirement, and the gain in contribution time may be consumed by the new barrier.

The third point is the amount. Because later contributions enter the base calculation period, reaffirmation can raise the initial monthly benefit when recent contributions exceed the average of the contribution history. If the opposite is true, the benefit starts out smaller, and the trade-off between what you gain in access and what you lose in value must be weighed before you ask for it.

As for timing in the case, the thesis is explicit in covering the interval from the filing of the lawsuit to the judgment in the ordinary instances. A request made late, on appeal to the higher courts, meets resistance, and the new fact must always be subjected to the other side’s right to respond before it is considered.

On the administrative side the logic is similar, although the mechanism is different. The INSS’s internal regulations provide for using contributions made after the application within the same administrative proceeding, with the filing date moved forward. Proof is made through an updated social security statement and the receipts for the later contribution months.

In either route, the decision belongs to the insured person, not to the body deciding the case. Reaffirming means accepting a later start date in exchange for the grant, and that exchange must be understood and authorized by the person who will receive the benefit.

Frequently Asked Questions

Does reaffirming the DER make the insured person lose the back payments for the earlier period?

Yes, and that is the cost built into the measure. The benefit becomes payable from the new filing date, so the interval between the original filing and the day the requirements were met generates no installments. This is not the loss of a right, but the recognition that during that interval the right had not yet arisen.

Until what point in the case can you ask to reaffirm the DER?

The Tema 995 thesis covers the period from the filing of the lawsuit until the judgment is delivered in the ordinary instances, based on arts. 493 and 933 of the Code of Civil Procedure. The new fact must be related to the cause of action and be put before the opposing party for comment before the judgment.

Does reaffirming the DER change the amount of the initial monthly benefit?

Yes, because the base calculation period follows the new date. Contributions paid after the original application become part of the average of the contribution wages, which can raise or lower the final amount depending on how large those contributions were. The amount should be simulated at both dates before you choose.

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