Whole-Life Review: Brazil’s Supreme Federal Court Waives Repayment of Amounts Received

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

Brazil’s Supreme Federal Court has ruled that retirees who received payments under the “whole-life review” (revisão da vida toda) through April 2024 do not have to return them to the INSS (Brazil’s National Social Security Institute), even though the thesis remains rejected as a method for calculating retirement benefits.

What the Supreme Court decided about repaying the money

In ruling on the last appeals on the subject, the Supreme Federal Court (STF) held that benefits paid to insured persons under favorable court decisions on the whole-life review, and received through April 5, 2024, must not be returned. The ruling covers retirees who went to court relying on what was then the Court’s own position.

To reach this result, the justices chose to modulate the effects of the decision, a technique that sets the time limits of a ruling’s reach. The goal was to protect people who acted in good faith and to keep the change in position from retroactively affecting thousands of beneficiaries.

The Court also made an exceptional ruling that plaintiffs who sought the review in lawsuits still pending as of that date will not be charged attorneys’ fees or court costs. As a result, those who sued in line with the earlier case law do not bear the costs normally imposed on the losing party.

How the whole-life review has fared in the courts

The so-called whole-life review is a request to recalculate a retirement benefit using the insured person’s entire contribution history, including contribution salaries from before July 1994. For some beneficiaries, especially those who paid high contributions in that period, including those amounts could have raised the monthly benefit.

In 2022, the Supreme Court had set a thesis allowing insured persons to choose the retirement calculation that was most advantageous to them. It did so in Extraordinary Appeal 1276977, which was recognized as having general repercussion (Topic 1102). From then on, many beneficiaries began asking that their older contribution periods be included in the calculation of their benefit.

The picture changed in 2024. In judging Direct Actions of Unconstitutionality 2110 and 2111, the Court set that position aside and held that the transition rule for the pension formula factor (fator previdenciário), established in Law No. 9.876/1999, must be applied. That rule excludes precisely the contributions made before July 1994, which rules out choosing the more favorable method. In September of that year, the Court maintained its position by rejecting appeals that sought to exclude retirees who had filed for the review by March 21, 2024, the date the direct actions were decided, from the new thesis.

For some beneficiaries, especially those who paid high contributions in that period, including those amounts could have raised the monthly benefit.

What changes for those who filed a lawsuit

The central point of the most recent decision is legal certainty. The motions for clarification (embargos de declaração) under review, filed by an organization representing workers, argued that the reversal of position undermined the trust of those who had turned to the courts relying on a precedent set by the Court itself.

In practice, if you have already received amounts under the whole-life review within the time limit the Court set, you are protected from having to repay them. There is no order for retroactive collection of those sums, and no award of attorneys’ fees in the pending cases covered by the modulation.

On the other hand, the thesis remains rejected going forward. New requests based solely on including contributions made before July 1994 have no support, since applying the transition rule was held to be mandatory. If you want to seek a review of your benefit amount, you should consider other grounds provided by the legislation, a recurring topic in the content on social security law available on this website.

Each situation calls for a check of the contribution history, the date the benefit was granted, and the ten-year deadline for requesting a review (prazo decadencial), which generally runs from the first day of the month after the first payment was received. This technical analysis helps avoid filing lawsuits that have no chance of success and focuses the effort on the review theories that actually apply to the case.

Frequently Asked Questions

If I received amounts from the whole-life review, do I have to return them to the INSS?

No. Insured persons who received amounts under favorable court decisions on the whole-life review through April 5, 2024, are exempt from repayment. The purpose of modulating the effects was to protect those who acted in good faith, relying on the position in force when they filed their lawsuit.

Can I still request the whole-life review?

The thesis has been rejected as a method of calculation. The Supreme Court held that the transition rule for the pension formula factor, which excludes contributions made before July 1994, must be applied. For that reason, new requests based only on this review do not succeed, and the insured person must consider other grounds for review that the legislation allows.

What happens to attorneys’ fees and court costs in pending lawsuits?

As an exception, plaintiffs who sought the review in lawsuits not yet concluded by the date the Court set will not be charged attorneys’ fees or court costs. As a result, those who sued in line with the earlier case law do not bear the costs normally imposed on the losing party in those cases.

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