Legalidade na habilitação de herdeiros para o recebimento de valores de benefício assistencial não pagos em vida ao beneficiário: análise legal e de julgados proferidos por juízes federais em 2016

Abstract

The present work has the intention to debate an issue that causes polemic in the scope of social security law: the legality or not of the inheritorhabilitationfor the money unpaid in life to a beneficiary of government assistance, that deceases in the trajectory of a lawsuit/judicial proceeding. This discussion was elaborated from a comparative analysis between judicial decisions that dismissed habilitation‟s request and others that granted the inheritors‟ plea. Such judicial deeds were used taking into consideration several foundations: the first apply the concept that a government assistance is strictlypersonal, and any value cannot be passed to another person besides the beneficiary; those who have granted the request searched for foundation in the art. 23, sole paragraph, from Decree no. 6214/2007, that regulates the LOAS (Organic Law of Social Assistance) and, in this specific paragraph, allows the habilitation in the case of the beneficiary‟s death. But, to contextualize this debate, the text starts with a brief historic synthesis of the Social Security Law, showing the development of the Social Security System. Secondly, a conceptualpart, were presented definitions of what has to be considered government assistance, the requirements for the concession, characteristics, and other polemic themes about it. Finally, it was deepened the discussion reported above: legality or not of the inheritor qualification, opportunity in which was reached the conclusion that the infraconstitutional federal legal laws, the Constitution and the general principles of Law are favorable to the legality of the habilitation mentioned