Italian Constitutional Court, no. 91/2026, 25 may 2026

Article 13 of Royal Decree No. 636 of 14 April 1939 is constitutionally unlawful insofar as it does not allow the granting of a survivor’s pension to the surviving partner of a same-sex couple whose marriage was contracted abroad, where the other partner died before the entry into force of Law No. 76 of 20 May 2016.

Art. 2 Italian Constitution

Art. 36 Italian Constitution

Art. 38 Italian Constitution

Art. 13 del r.d.l. n. 636/1939 providing rules on reversibility contribution

1. The reasonableness of a given treatment may also be called into question on the basis of a criterion of anachronism, that is, by assessing the obsolescence of a past legislative choice in the light of the novelty (in the sense of currency) of a present legislative choice.

2. The Constitution does not reveal a requirement that same-sex unions be equated with marriage, given that the latter, by reason of the profound differences that distinguish it from a mere union, cannot be assumed, in its entirety, to constitute a valid tertium comparationis, according to the criteria set out by constitutional case law. A comparison between marriage and same-sex unions (as with other forms of union or cohabitation) is instead possible with regard to specific aspects, in relation to “particular cases”, where the difference in treatment amounts to an instance of unreasonableness.

3. The rationale underlying the reversibility of pension benefits consists in ensuring that their enjoyment continues, at least in part, even after the death of the pension holder, for the benefit of those persons bound to the deceased by certain family ties, thereby guaranteeing beneficiaries protection against the consequences arising from the death of their spouse or relative, and thus giving effect, also on the social security level, to a form of continued efficacy of family solidarity beyond death. Although, with regard to the reversibility of pension benefits, the legislature may enjoy significant discretion, it remains the case that, once the rationale of the institute is identified as a form of continued efficacy of family solidarity beyond death, a legislative choice that unreasonably impinges upon such solidarity cannot be considered consistent with the Constitution.