JUDGMENT NO. 91
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has handed down the following
JUDGMENT
in the proceedings regarding the constitutionality of Art. 13 of Royal Decree-Law no. 636 of 14 April 1939 (Amendments to the provisions on compulsory insurance for invalidity and old age, tuberculosis, and involuntary unemployment, and the replacement of maternity insurance with compulsory marriage and birth insurance), converted, with amendments, into Law no. 1272 of 6 July 1939, initiated by the Court of Cassation, Joint Civil Chambers, in the proceedings between the National Institute for Social Security (INPS) and L.D. M., in his own capacity and as the parent exercising parental responsibility over the minor S.C. M.C., by referral order of 15 July 2025, registered under no. 187 of the 2025 registry of orders and published in the Official Gazette of the Republic no. 41, first special series, of the year 2025.
Having regard to the entries of appearance of L.D. M., in his own capacity and as the parent exercising parental responsibility over the minor S.C. M.C., and of the INPS, as well as the brief of intervention of the President of the Council of Ministers;
having heard Judge Massimo Luciani as Rapporteur at the public hearing of 25 February 2026;
having heard the attorneys Alexander Schuster for L.D. M., Antonella Patteri for the INPS, and the State Attorney Wally Ferrante for the President of the Council of Ministers;
having deliberated in the chambers on 25 February 2026.
Legal Findings of Fact
1.– By referral order of 15 July 2025, registered under no. 187 of the 2025 registry of orders, the Court of Cassation, Joint Civil Chambers, raised ex officio, with reference to Articles 2, 36 (first paragraph), and 38 of the Constitution, questions regarding the constitutionality of Art. 13 of Royal Decree-Law no. 636 of 14 April 1939 (Amendments to the provisions on compulsory insurance for invalidity and old age, tuberculosis, and involuntary unemployment, and the replacement of maternity insurance with compulsory marriage and birth insurance), converted, with amendments, into Law no. 1272 of 6 July 1939, insofar as it does not allow for the granting of a survivor’s pension to the surviving partner in the event of the death of the other member of a same-sex couple occurring prior to the entry into force of Law no. 76 of 20 May 2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation), despite the formalization of a matrimonial bond abroad.
1.1.– Regarding the facts, the referring Joint Chambers state that they are called to decide upon the appeal to the Court of Cassation filed by the National Institute for Social Security (INPS) against the judgment by which, partially reforming the first-instance decision, the Court of Appeal of Milan declared the right of L.D. M. and the minor S.C. M.C. to receive an indirect pension as survivors of D. C., ordering the Institute to pay the accrued and unpaid installments from 1 November 2015, plus statutory interest.
They highlight that L.D. M. and D. C., "bound by a stable cohabitation, had a child in the United States, born on 13 January 2010 via assisted reproduction," whose birth "was registered in Italy on 23 March 2010, attributing paternity solely to [M.]," and that, having contracted marriage in New York on 2 November 2013, "the document was transcribed in Italy as a civil union on 4 October 2016, by which time the death of [C.], occurring on 8 October 2015, had already taken place."
They add that, subsequent to the death, "on 8 May 2017, the United States judgment of 5 July 2016, which had established the paternity of the minor also in the person of [D. C.], was transcribed, as well as the birth certificate of [S.C. M.C.]," duly updated to reflect "the recognition obtained in judicial proceedings," and that, after exhausting the required administrative procedures to obtain the survivor's pension without success, L.D. M., in his own capacity and in his capacity as the holder of parental authority over the minor S.C. M.C., filed a judicial claim seeking a declaration that the denial opposed by the INPS constituted direct discrimination based on gender and sexual orientation, and requested, primarily, "the disapplication of the Italian legislation, in force ratione temporis, insofar as it excludes, in the event of the death of an INPS-insured person, the right to an indirect pension of the same-sex survivor and the minor child of a same-sex couple," also formulating "an independent claim for the recognition of the right to social security benefits" and requesting in any case an order for the Institute to pay the arrears.
They report that the first-instance court rejected the claim regarding the finding of discrimination and declared the independent claim inadmissible, as it was incompatible with the special procedure provided by Art. 28 of Legislative Decree no. 150 of 1 September 2011 (Complementary provisions to the Code of Civil Procedure on the reduction and simplification of civil cognitive proceedings, pursuant to Article 54 of Law no. 69 of 18 June 2009), and Art. 4 of Legislative Decree no. 216 of 9 July 2003 (Implementation of Directive 2000/78/EC on equal treatment in employment and occupation and Directive 2014/54/EU on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers), and that the Territorial Court, "taking a contrary view regarding the admissibility of the subordinate claim," had "examined it with priority" and upheld it based on a "constitutionally and conventionally oriented interpretation" of the regulations on the survivor's pension, consequently considering the claim regarding the finding of discrimination as absorbed.
Having stated this, they deem the questions regarding the constitutionality of Art. 13 of R.D.L. no. 636 of 1939, as converted, to be relevant and not manifestly ill-founded, "insofar as it limits the right to a survivor’s pension to the spouse and does not extend it to the survivor of a same-sex couple who, at the time of death, had formalized the union abroad and found themselves in a legal impossibility of obtaining recognition of the bond in Italy."
1.2.– Regarding relevance, the referring Joint Chambers premise that the reasoning of the challenged judgment "cannot be shared because [...] it reaches a result that exceeds the limits of 'interpretazione adeguatrice' [interpretive adjustment] which, in the presence of an unequivocal wording of the provision applicable to the case, must yield to the review of constitutional legitimacy" (reference is made to the judgment of this Court no. 253 of 2020).
They thus highlight that the institution of the survivor’s pension is still governed by the aforementioned Art. 13 of R.D.L. no. 636 of 1939, which—in providing, in the first paragraph, that "[i]n the event of the death of the pensioner or the insured person [...] a pension is due to the spouse and to the surviving children who, at the time of the death of the pensioner or the insured person, have not exceeded the age of 18, and to children of any age recognized as unable to work and dependent on the parent at the time of their death"—recognizes the right "in favor of the 'spouse,' and therefore values the marital relationship which, as highlighted by constitutional case law and by these Joint Chambers [...], cannot be fully assimilated to the situation of cohabitation, even if stable, and presents elements of differentiation even with respect to the bond originating from a civil union" (reference is made, in particular, to the judgment of this Court no. 66 of 2024).
They recall, furthermore, that only with Art. 1, paragraph 20, of Law no. 76 of 2016 was it provided that "[f]or the sole purpose of ensuring the effectiveness of the protection of rights and the full fulfillment of obligations deriving from civil unions between persons of the same sex, provisions referring to marriage and provisions containing the words 'spouse,' 'spouses,' or equivalent terms, wherever they appear in laws, acts having the force of law, regulations, as well as in administrative acts and collective agreements, shall also apply to each of the parties of the civil union between persons of the same sex," and that, based on the delegation under the subsequent paragraph 28, Art. 1, paragraph 1, letter a), of Legislative Decree no. 7 of 19 January 2017, entitled "Amendments and reorganization of the rules of private international law for the regulation of civil unions, pursuant to Article 1, paragraph 28, letter b), of Law no. 76 of 20 May 2016," introduced into Law no. 31 May 1995, no. 218 (Reform of the Italian system of private international law), Art. 32-bis, where it is established that "[m]arriage contracted abroad by Italian citizens with a person of the same sex produces the effects of a civil union regulated by Italian law."
They believe, however, that the principle of non-retroactivity of laws prevents these effects from being produced in relation to situations that arose prior to the entry into force of Law no. 76 of 2016, as subsequent legislation can only apply ex nunc to a past event when it concerns regulating effects that continue over time (references are made to the Court of Cassation, Joint Civil Chambers, judgments no. 35969 of 27 December 2023 and no. 5939 of 25 May 1991), whereas this cannot be said regarding the right to a survivor’s pension, the entitlement to which must be assessed exclusively with regard to the regulations in force at the time of the death of the insured, which constitutes the generating fact (references are made, among others, to the Court of Cassation, Labor Section, judgments no. 23841 of 23 November 2015 and no. 17514 of 3 September 2015).
From another, but concurrent, perspective, the referring Joint Chambers exclude—contrary to what was argued before them by the private party—that the recognition of the right in question can be achieved by disapplying domestic legislation as conflicting with the prohibition of discriminatory treatment based on sexual orientation, referred to in Council Directive 2000/78/EC of 27 November 2000, which establishes a general framework for equal treatment in employment and occupation.
Referring to the judgment of the Court of Justice of the European Union, First Chamber, 24 November 2016, Case C-443/15, David L. Parris, they note that the cited directive leaves intact the exclusive competence of national legislations in matters of civil status and the benefits deriving therefrom, nor does it oblige Member States to recognize retroactive effects for civil unions or to provide, specifically regarding survivor’s pensions, transitional law measures for the benefit of same-sex couples, merely preventing the social security treatment reserved for parties to a civil union from being detrimental compared to that provided for spouses (references are also made to CJEU, Grand Chamber, judgment 10 May 2011, Case C-147/08, Jürgen Römer, and Court of Justice of the European Communities, Grand Chamber, judgment 1 April 2008, Case C-267/06, Tadao Maruko).
Believing that analogous conclusions can be drawn from the case law of the European Court of Human Rights (reference is made to ECtHR, Third Section, judgment 14 June 2016, Aldeguer Tomás v. Spain), the referring Joint Chambers deem that the question must be decided exclusively by taking as a reference the provision of Art. 13 of R.D.L. no. 636 of 1939, as converted, in the text applicable ratione temporis at the time of the death of the insured (8 October 2015).
1.3.– Regarding the lack of manifest ill-foundedness, the Joint Chambers acknowledge that constitutional case law had previously deemed, with judgment no. 461 of 2000, the failure to include the cohabitant more uxorio among the beneficiaries of the survivor’s pension to be justified, but they believe that the reasons underlying that decision cannot be extended to the present case, "in which there is no issue of a heterosexual de facto cohabitation, the result of a free choice of the heterosexual couple, nor is there a lack of formalization of the bond, understood as a certain historical fact documentable for the purpose of accessing the social security benefit, because the discussion concerns a same-sex union legalized abroad, the recognition of which the legislator did not allow [...] until the entry into force of Law no. 76 of 2016."
Equally known to the Joint Chambers is judgment no. 138 of 2010, by which this Court declared inadmissible the questions then raised by the referring judges, who sought an additive ruling extending the entire regulation of civil marriage to the union of persons of the same sex. Indeed, it is "from the reasoning of this ruling that [they] believe they must start in presenting the question of constitutionality in the terms indicated above," since, on that occasion, this Court, while highlighting the diversity between marriage and same-sex unions and recognizing that it is for the legislator to define the protections proper to the latter, did not fail to identify in same-sex unions a social formation capable of allowing the free development of the human person in social life, reserving the possibility of intervening, through a reasonableness check, to protect specific situations where the need for homogeneous treatment between the married couple and the same-sex couple is detectable.
"It is this [reasonableness] check that the Joint Chambers intend to solicit in the present case": a right would in fact be at stake which, placing itself in the stream of Art. 36 (first paragraph) and Art. 38 (second paragraph) of the Constitution and participating in the same social security function proper to the pension treatment (to which it adds "the ultra-activity of family solidarity"), could well be included among fundamental rights (references are made to the judgments of this Court no. 148 of 2024, no. 162 of 2022, and no. 174 of 2016), "in the presence of which the difference from the family founded on marriage becomes recessive, and the additive intervention [...] aimed at rendering the condition of the same-sex couple homogeneous with that of the married couple is justified, in the event that the former was prevented, by reason of the regulations in force ratione temporis, from the recognition of the bond contracted abroad."
2.– The President of the Council of Ministers, represented and defended by the State Attorney’s Office, intervened in the proceedings, requesting that the questions be declared inadmissible and, in any case, unfounded.
Regarding admissibility, the State Attorney’s Office argues first that the additive intervention requested would exceed the powers of this Court, implying choices left to the discretion of the legislator connected to the "economic assessment of the burdens connected to an expansion, for the past, of the base of beneficiaries," in the absence of "a single constitutionally mandatory solution" (references are made to orders no. 176 and no. 156 of 2013 and judgment no. 87 of 2013) or a transgression of the "canon of reasonableness that must preside over normative choices" (references are made to judgments no. 229 and no. 223 of 2015, no. 248 and no. 81 of 2014, no. 206 of 1999, no. 43 of 1997, and no. 313 of 1995).
From another perspective, the intervening party notes that, in the present case, the granting of the right to a survivor’s pension to the surviving cohabitant of a same-sex couple, now peacefully recognized by Art. 1, paragraph 20, of Law no. 76 of 2016, would, if anything, be prevented by the circumstance that the death of the insured occurred prior to the entry into force of Art. 1, paragraph 1, letter a), of Legislative Decree no. 7 of 2017, which attributes the effects of a civil union to marriage contracted abroad by Italian citizens of the same sex. Consequently, as the a quo judge did not challenge "the choice of the 2016 legislator to recognize legal value to same-sex unions only pro futuro," without providing "a transitional regulation that provides for its application to cases arising before its entry into force but producing effects also subsequently," the current questions of constitutionality would be inadmissible for failure to correctly identify the norm "that effectively constitutes the obstacle to the constitutional protection invoked."
A final profile of inadmissibility is found in the referring party’s choice not to explicitly evoke Art. 3 of the Constitution among the constitutional parameters allegedly violated. In recalling the constitutional case law that expanded the base of beneficiaries of the survivor’s pension for the benefit of minor grandchildren living as dependents of their ancestors, even if not formally placed under their care (reference is made to judgment no. 180 of 1999), and of disabled adult grandchildren (reference is made to judgment no. 88 of 2022), the State Attorney recalls that in both cases the partial constitutional illegitimacy of Art. 38 of the Decree of the President of the Republic no. 818 of 26 April 1957 (Provisions for the implementation and coordination of Law no. 218 of 4 April 1952, on the reorganization of pensions of compulsory insurance for invalidity, old age, and survivors), was declared due to the violation of Art. 3 of the Constitution, as an unreasonable disparity of treatment was at stake. This must also be considered true in the present case; thus, the evocation of parameters other than Art. 3 of the Constitution would be inadequate to found the challenge.
On the merits, the State Attorney concluded for the unfoundedness of the questions in relation to all the evoked parameters, emphasizing the full constitutional legitimacy of the legislator’s choice to attribute effect only pro futuro to the recognition of the civil effects of same-sex unions contracted abroad before the entry into force of Law no. 76 of 2016.
3.– The INPS appeared in the proceedings, requesting that the questions of constitutionality be declared unfounded.
In the Institute’s view, the survivor’s pension constitutes a form of "ultra-activity" of family solidarity (reference is made to the judgment of this Court no. 88 of 2022, which recalls the previous no. 174 of 2016 and no. 180 of 1999) and, not being in any way correlated to the state of need of the entitled party, would fall outside both the range of benefits protected by Art. 38 of the Constitution and the provision of Art. 36 of the Constitution, as it is not intended to assist the worker, but rather the spouse, the person in a civil union, and the family member (within a certain degree) of the same, once deceased.
This latter characteristic would make the referring party's reference to judgment no. 148 of 2024 irrelevant, with which this Court—in declaring the constitutional illegitimacy of Art. 230-ter of the Civil Code—recognized the right to participate in the profits and increments of the family business also to the surviving de facto cohabitant of the partner who died before the entry into force of Law no. 76 of 2016: while participation in profits and increments constitutes the remuneration of the de facto cohabitant who performed work within the family business, and remuneration undoubtedly constitutes a "fundamental right" of the individual, fulfilling the "fundamental function of safeguarding against slavery and the gratuitous exploitation of labor," the survivor’s pension would not possess such characteristics, as it is rather a "social security benefit exceptionally recognized not to the insured worker, but to certain of their family members, therefore to subjects linked to the deceased worker by virtue of the possession of a civil status to which follows the attribution of a set of rights and subjection to a set of obligations established by law," such as, for example, the status of legal heir and forced heir.
Lastly, the Institute emphasizes that it would not be possible to "allow entry into our legal system to the prospect that all same-sex cohabitations, even if already concluded before the entry into force of Law no. 76 of 2016, give the right to reversibility, going backward without limits of time," without thereby "preventing the quantification of expenditure within the framework of financial, annual, and multiannual planning" and compromising "[t]he sustainability of the social security system," especially taking into account that the survivor’s pension, not constituting a social assistance benefit, "is charged to the management of the deceased's enrollment."
4.– The private party appeared in the proceedings, in his own capacity and in the explained quality, requesting that the questions be declared founded.
Recalling that, according to constitutional case law, the survivor’s pension "borrows the nature of deferred remuneration from its own social security connotations" (judgment no. 174 of 2016) and is "aimed at preserving the bond of solidarity that links the transferor to their family members, projecting its compelling force also in the time following death" (judgment no. 100 of 2022, together with the precedents cited therein), the private party highlights that it would not be a matter here of critiquing whether Law no. 76 of 2016 was tardy with respect to the necessary fulfillment of the constitutional obligations deriving from Art. 2 of the Constitution: "[f]rom the perspective of international obligations, it certainly was, as made irrefutable by the judgments of condemnation of the Italian Republic by the ECtHR" (references are made to the judgments of the ECtHR, Fourth Section, 21 July 2015, Oliari and Others v. Italy, and First Section, 14 December 2017, Orlandi and Others v. Italy). Consequently, it would rather be a matter of evaluating "whether the legislative power acted within limits of coherence and substantive justice when it did not provide for any discipline, not even transitional, within Law no. 76/2016, for those rights that, net of any general recognition of unions between persons of the same sex, could in any case be invoked by such couples because they were unreasonably excluded," among which, indeed, is the survivor’s pension.
Having stated this, the private party highlights that the homogeneity of the situation in which same-sex couples and heterosexual couples find themselves constitutes a fact now acquired both in national legislation (reference is made to Art. 1, paragraph 12, of Law no. 76 of 2016) and in supranational and international regulations (references are made to: ECtHR, First Section, 24 June 2010, judgment Schalk and Kopf v. Austria; the explanations relating to the Charter of Fundamental Rights of the European Union, published in the Official Journal of the European Union, 14 December 2007, C-303, in particular the one relating to Art. 9; the communications of the Human Rights Committee CCPR/C/78/D/941/2000 of 18 September 2003 and CCPR/C/89/D/1361/2005 of 14 May 2007; the advisory opinion of the Inter-American Court of Human Rights OC-24/17 of 24 November 2017).
They also highlight that the same-sex couple, at the time of the insured’s death, "did not enjoy in the Italian legal system any possibility of choice, given the radical lack of any option of legal recognition of their union" and that it is precisely this impossibility of choice that led the Court of Justice of the European Union to state that "a disparity of treatment based on the marital status of workers [...] is still a direct discrimination since, marriage being reserved for persons of different sex, homosexual workers are unable to satisfy the condition necessary to obtain the benefits claimed" (reference is made to CJEU, Fifth Chamber, judgment 12 December 2013, Case C-267/12, Frédéric Hay).
They emphasize, moreover, that having the couple contracted marriage in the United States in this case, the matter in question would not be comparable to that of a homosexual couple freely cohabiting, as the marriage contracted abroad could not be considered non-existent, but rather had to be qualified merely as unproductive of legal effects in the Italian legal system prior to Law no. 76 of 2016 (reference is made to Court of Cassation, First Civil Section, judgment 15 March 2012, no. 4184).
They conclude, therefore, that "[t]he provision suspected of unconstitutionality effectively clashes with Articles 3, 36, and 38 of the Constitution as it denies a family, such as that composed of two men in a stable affective relationship, sealed by a marriage validly contracted abroad, the protection guaranteed to the worker's family by the Constitutional Charter when it excludes the worker's spouse from the survivor's treatment."
Finally, they reiterate the request for a preliminary ruling to the CJEU, pursuant to Art. 267 of the Treaty on the Functioning of the European Union, in relation to the questions raised since the first instance of judgment (and reproposed to the a quo judge), so that the Court of Justice clarifies whether, under Directive 2000/78/EC, it constitutes "direct discrimination based on sexual orientation to deny an indirect pension in favor of the surviving partner of the same gender as the worker, both married abroad, by reason of the fact that the Member State does not recognize such marriage nor offer any other alternative institute for the protection of the same-sex relationship, and this although at the time of death that Member State had already been judged in violation of Art. 8 ECHR in the Oliari v. Italy judgment precisely for lack of any form of union recognition."
On this point, they believe that, although the referring judge "not only did not propose a double preliminary ruling, but expressly excluded it," since "he excluded from the perimeter of the scrutiny of constitutionality the constitutional parameters, such as Art. 117, para. 1, of the Constitution which allow EU law to act as interposed norms," the judgment on the compatibility of the challenged norm with European Union law would constitute a prius logical-legal relative to the scrutiny of constitutional legitimacy in an incidental way, challenging the very applicability of the norm to the case in point and affecting, ultimately, the relevance (references are made to the judgment of this Court no. 245 of 2019 as well as the orders no. 182 of 2020, no. 48 of 2017, and no. 298 of 2011).
They recall, furthermore, that the case law of the Court of Justice is constant in excluding that a judge of a Member State can be considered bound by the assessment of another judge of the same Member State regarding the compatibility of national law with Union law (references are made to the Court of Justice, Grand Chamber, judgment 18 January 2022, Case C-261/20, Thelen Technopark Berlin GmbH, and First Chamber, judgment 20 October 2011, Case C-396/09, Interedil srl).
On the merits, they believe that, constituting "a form of deferred remuneration," the survivor’s pension governed by Italian law should fall within the prescriptive scope of Art. 3, paragraph 1, letter c), of Directive 2000/78/EC, with the consequent application of the prohibition of discrimination based on sexual orientation, clearly formulated in the cited CJEU judgment rendered in Case C-267/12, in harmony with other judgments of the same body (references are made to the already cited CJEU judgments in cases C-147/08 and C-267/06; as well as First Chamber, judgment 27 April 2006, Case C-423/04, Sarah Margaret Richards). Only apparent, therefore, would be the conflict with the CJEU judgment in Case C-443/15, cited in the referral order. First, because "the case concerned an alleged intersectional discrimination," then considered non-existent in Union law and now instead peacefully recognized (reference is made to EU Directive 2023/970 of the European Parliament and of the Council, of 10 May 2023, aimed at strengthening the application of the principle of equal pay between men and women for equal work or work of equal value through pay transparency and related enforcement mechanisms); second, because "that case concerned Ireland, whereas the present case concerns Italy," which, having been condemned by the ECtHR as being in default for not having provided any formal recognition of same-sex couples, had to be considered already in 2015 "in a continuing situation of violation of the Charter of Fundamental Rights" (references are made, in particular, to Art. 52, paragraph 3, first sentence, of the CFR-EU, according to which "[i]nsofar as this Charter contains rights which correspond to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention," and the judgment of the ECtHR, Grand Chamber, 17 January 2023, Fedotova and Others v. Russia).
Since Union law cannot, therefore, "tolerate that within its sphere of competence the consequences of a violation of human rights and fundamental freedoms reverberate, even if such violation is implemented within the scope of competences reserved to the States" (references are made to the Court of Justice, Grand Chamber, judgments 4 October 2024, Case C-4/23, M.-A.A. and 27 April 2006, C-423/04; Court of Justice EEC 7 January 2004, Case C-117/01, K.B.), the request for a preliminary ruling could be considered absorbed only in the event of the acceptance of the questions of constitutional legitimacy, unless this Court "intended to introduce denied temporal limitations of effectiveness [...], as the power to modulate the temporal effects of its own interpretations is reserved to the Court of Justice."
5.– In view of the public hearing, the private party filed a brief, insisting on the conclusions already submitted.
Referring to the briefs of intervention and appearance of the President of the Council of Ministers and the INPS, they note first that none of the reasons for inadmissibility proposed by the State Attorney’s Office would exist: not the one concerning the lack of a single constitutionally mandatory solution, as the a quo judge clearly formulated the petitum and the other possible choices that the legislator could make in the matter were not even exemplified; not the one concerning the absence of challenges against Law no. 76 of 2016, insofar as it did not provide for a transitional regulation, as today’s matter does not concern the set of rights and duties deriving from the civil union, but only the question of the entitlement to the survivor’s pension; not the one relating to the failure to evoke, as a parameter, Art. 3 of the Constitution, as that relates, rather, to the merits of the questions.
Equally implausible would be the arguments of the Attorney’s Office and the INPS defense regarding the alleged impossibility of tracing the survivor’s pension to the scope of Articles 36 and 38 of the Constitution, as the Constitutional Court has "clearly recognized, moreover in line with the case law of the Court of Justice, the remunerative nature of such benefit, anchored to the work and contribution career of the insured" (reference is made again to judgment no. 174 of 2016).
Also groundless would be the defense of the INPS regarding the necessity that the survivor’s pension presupposes a formalized legal relationship and one attributing a public law status: not only because already today there are cases in which the Institute is called to carry out factual investigations regarding the cohabitation relationship between the de cuius and the alleged entitled party as well as regarding the so-called "vivenza a carico" [dependency] of the latter on the insured, but above all because constitutional case law "does not subordinate fundamental rights, of which a family member benefits, to the condition that the link be formalized" (reference is made again to judgment no. 148 of 2024, with the precedents cited therein).
The private party recalls, finally, that the case law of the ECtHR and that of the Court of Justice of the European Union would now be in agreement in considering that Member States must offer same-sex couples "at least a form of protection alternative to marriage" (cited lastly is the judgment of the CJEU, Grand Chamber, 25 November 2025, Case C-713/23, Jakub Cupriak-Trojan and Another) and that—setting aside the circumstance that the marriage contracted abroad should satisfy ex se "the mark of officiality and formalization necessary for access to the survivor’s pension"—this Court, with judgment no. 7 of 2026, in declaring the constitutional illegitimacy of Art. 2941, first paragraph, number 1), of the Civil Code, insofar as it does not provide that the statute of limitations remains suspended between de facto cohabitants, would have excluded that the lack of "formal prerequisites, certain a priori," that attest to the existence of the relationship, can constitute a valid reason to differentiate the situation of cohabitants compared to that of spouses.
Legal Reasoning
6.– With the order indicated in the epigraph (reg. ord. no. 187 of 2025), the Court of Cassation, Joint Civil Chambers, raised ex officio, with reference to Articles 2, 36 (first paragraph), and 38 of the Constitution, questions regarding the constitutionality of Art. 13 of R.D.L. no. 636 of 1939, as converted, "insofar as, limiting the right to the spouse, it does not allow the attribution of the survivor’s pension in favor of the surviving partner, in the event of death, occurring before the entry into force of Law no. 76 of 2016, of the other member of the same-sex couple, despite the formalization of the bond abroad."
The President of the Council of Ministers intervened in the constitutional judgment thus promoted, and the INPS and the interested private party appeared.
Before examining the merits, it is necessary to delimit the petitum of the referral order and dwell on the procedural questions raised by the State Attorney’s Office and the private party.
6.1.– With regard to the petitum, precisely, it is well to emphasize that the referring Joint Chambers raised the questions of constitutionality of Art. 13 of R.D.L. no. 636 of 1939, as converted, exclusively insofar as it limits the recognition of the right to the survivor’s pension to the spouse and does not extend it to the survivor of a same-sex couple who, at the time of death, had joined in marriage abroad and found themselves in a legal impossibility of transcribing it in Italy due to the absence of legislation allowing it.
6.2.– Regarding the admissibility of the questions, the State Attorney’s Office argued first that the requested additive intervention would exceed the powers of this Court, implying choices left to the discretion of the legislator regarding the "economic assessment of the burdens connected to an expansion, for the past, of the base of beneficiaries" and lacking "a single constitutionally mandatory solution" or a transgression of the "canon of reasonableness that must preside over normative choices."
The objection is unfounded.
While reaffirming what has already been stated by constitutional case law on the broader conditions that allow for additions or substitutions of normative dictates on the occasion of a ruling of acceptance, it must be said that the referral order has precisely indicated the requested additive solution by comparing it with the tertium comparationis constituted by the more favorable treatment due to the survivor who is a spouse or in a civil union (see, for a similar case, judgment no. 224 of 2020) and has precisely evoked that "reasonableness check" which this Court reserved for itself when, while recognizing the distinct consideration that, on a constitutional level, must be attributed to a same-sex couple compared to a married couple, it admitted that, "in relation to particular hypotheses," one may encounter "the need for homogeneous treatment between the condition of the married couple and that of the same-sex couple" (judgment no. 138 of 2010; in the same sense, judgments no. 66 of 2024 and no. 170 of 2014).
6.3.– The State Attorney’s Office then put forward (albeit without explicitly qualifying it as such) a hypothesis of aberratio ictus, noting that, in the present case, the attainment of the right to the survivor’s pension to the surviving cohabitant of a same-sex couple, subsequently recognized by virtue of Art. 1, paragraph 20, of Law no. 76 of 2016, would be prevented by the circumstance that the death of the insured occurred prior to the entry into force of Art. 1, paragraph 1, letter a), of Legislative Decree no. 7 of 2017, which attributes the effects of a civil union to marriage contracted abroad by Italian citizens of the same sex. Consequently, as the a quo judge did not challenge "the choice of the 2016 legislator to recognize legal value to same-sex unions only pro futuro," without contemplating "a transitional regulation that provides for its application to cases arising before its entry into force but producing effects also subsequently," the current questions of constitutionality would be inadmissible for failure to correctly identify the norm "that effectively constitutes the obstacle to the constitutional protection invoked."
Although it is rooted in the implicit (and correct) consideration of the essentiality, in general, of an adequate intertemporal law for the proper functioning of the legal system, this objection is also unfounded.
The referring Joint Chambers, in fact, did not intend to challenge the absence of a general transitional regulation regarding same-sex marriages contracted abroad and dissolved before the entry into force of Law no. 76 of 2016, but—on the uncontroversial premise of the non-retroactivity of the regulation of civil unions—limited themselves to doubting the constitutionality of the regulation of the survivor’s pension insofar as it does not allow the attribution of the benefit in favor of the surviving partner in the event of the death of the other component of the same-sex couple (bound by a marriage bond contracted abroad) occurring prior to the entry into force of Law no. 76 of 2016.
It must also be recalled that constitutional case law is firmly established in the sense that "the inadmissibility of the questions for aberratio ictus occurs only where the norm in reference to which the challenges of constitutional illegitimacy are formulated is erroneously identified" (judgment no. 88 of 2022) and—above all—in the hypothesis in which, "whatever the ruling on the merits in relation to the challenges presented, the a quo judgment would remain defined by norms contained in different provisions" (judgment no. 206 of 2020). This is not the case here, if it is true that this same Court identified in Art. 13 of R.D.L. no. 636 of 1939, as converted, the norm that "outlines the conditions so that the spouse and children of the pension holder [...] can enjoy the survivor’s pension" (judgment no. 88 of 2022).
6.4.– A final profile of inadmissibility is found by the State Attorney’s Office in the referring party’s choice not to explicitly evoke Art. 3 of the Constitution among the constitutional parameters allegedly violated. In recalling the constitutional case law that expanded the base of beneficiaries of the survivor’s pension for the benefit of minor grandchildren living as dependents of their ancestors, but not formally placed in their care (reference is made to judgment no. 180 of 1999), and of disabled adult grandchildren (reference is made to judgment no. 88 of 2022), the defense of the President of the Council of Ministers recalls that in both cases the partial constitutional illegitimacy of Art. 38 of D.P.R. no. 818 of 1957 was declared due to the violation of Art. 3 of the Constitution, as an unreasonable disparity of treatment was at stake. This must also be considered true in the present case; thus, the evocation of parameters other than Art. 3 of the Constitution would be inadequate to found the presented challenge.
Not even this objection is founded: it is sufficient, on this point, to recall that the failure to identify a specific constitutional parameter, in addition or as an alternative to those expressly indicated, is a matter that relates to the merits of the question and not to its admissibility (judgment no. 166 of 2019). We will, therefore, return to this point at 8.6.
6.5.– It is worth mentioning, lastly, that the defense of the private party reiterated, in the event that the questions are declared unfounded, the motion (already proposed in the main proceedings) for a preliminary ruling, pursuant to Art. 267 TFEU, in relation to the questions raised since the first instance of judgment, so that the Court of Justice of the European Union clarifies whether, under Directive 2000/78/EC, it constitutes "direct discrimination based on sexual orientation to deny an indirect pension in favor of the surviving partner of the same gender as the worker, both married abroad, by reason of the fact that the Member State does not recognize such marriage nor offer any other alternative institute for the protection of the same-sex relationship, and this although at the time of death that Member State had already been judged in violation of Art. 8 ECHR in the Oliari v. Italy judgment precisely for lack of any form of union recognition."
On this point, the private party premises that, although the referring judge "not only did not propose a double preliminary ruling, but expressly excluded it," since "he excluded from the perimeter of the scrutiny of constitutionality the constitutional parameters, such as Art. 117, para. 1, of the Constitution which allow EU law to act as interposed norms," the judgment on the compatibility of the challenged norm with European Union law would constitute a prius logical-legal relative to the scrutiny of constitutional legitimacy in an incidental way, as it would concern the direct disapplicability of the norm to the case in point and consequently the relevance of the quaestio.
On the merits, the private party maintains that, constituting "a form of deferred remuneration," the survivor’s pension governed by Italian law should fall within the scope of Art. 3, paragraph 1, letter c), of Directive 2000/78/EC, with the consequent application of the prohibition, established therein, of discrimination based on sexual orientation.
6.6.– There is no need to rule on the motion of the private party, described in the previous point. Setting aside the procedural fact that it was proposed only in the alternative and in the hypothesis of the rejection of the quaestiones, suffice it to recall that the perimeter of incidental constitutional judgment is defined by the introductory act and cannot be altered or expanded by the parties during its progress (see, ex plurimis, judgments no. 199 of 2025, no. 202, no. 200 of 2018 and, regarding the figure of the amicus curiae, no. 180 of 2021).
7.– Coming to the merits, the referring judge puts forward an unreasonable disparity of treatment concerning the survivor’s pension benefit paid by the general compulsory insurance, which constitutes the "good of life" at issue in the main proceedings.
The employment relationship of the de cuius constitutes the prerequisite, but not the cause, of the survivor’s pension. As happens in pay-as-you-go systems, then, regarding financing, it is the present (active) generations that provide the necessary resources for the payment of survivor’s pensions in favor of the previous (inactive) generations, exactly as future generations will do for the current ones. A bond of solidarity thus links the generations, articulated in time, which materializes in a chain of reciprocal duties.
The structural and financing characteristics of the survivor’s pension are therefore different from those of remuneration, which also allows for the definition of the relationship between this and EU law, which—as seen—was the subject of a reference by the private party. It must indeed be excluded that the pension paid by the general compulsory insurance is susceptible to falling within the scope of Directive 2000/78/EC. Art. 3 of that directive, in fact, establishes, in paragraph 3, that it "shall not apply to payments of any kind made by state schemes or equivalent bodies, including state social security or social protection schemes," and, in interpreting that last provision, the Court of Justice has clarified that, in order to evaluate whether a pension benefit falls within the scope of application of the directive or not, it is decisive to establish whether "the pension [...] is paid to the worker by reason of the employment relationship that links him to his former employer," that is, "if the pension interests only a particular category of workers, if it is directly proportional to the years of service performed and if its amount is calculated on the basis of the last salary" (ECJ, judgment 1 April 2008, Case C-267/06, paragraphs 46-48).
The reference to pension benefits that concern "only a particular category of workers" (such as the employees of German theaters insured with the Versorgungsanstalt der deutschen Bühnen, in the case of the judgment in Case C-267/06; the employees of the Freie und Hansestadt Hamburg, in the case of the judgment in Case C-147/08; the employees of Trinity College Dublin, in the case of the judgment in Case C-443/15) clarifies, evidently, that within the perimeter of the directive fall only those supplementary pension benefits which, possibly also by means of institutions created ad hoc, are paid by private or public employers to their former employees and which have, therefore, structural and financing characteristics analogous to those of remuneration.
8.– Still on the merits, the Joint Chambers acknowledge that, with judgment no. 461 of 2000, this Court deemed the failure to include the cohabitant more uxorio among the beneficiaries of the survivor’s pension to be justified, but they deem that the reasons underlying that decision cannot be extended to the present case, since here "there is no issue of a heterosexual de facto cohabitation, the result of a free choice of the heterosexual couple, nor is there a lack of formalization of the bond, understood as a certain historical fact documentable for the purpose of accessing the social security benefit," discussing instead "a same-sex union legalized abroad, the recognition of which the legislator did not allow [...] until the entry into force of Law no. 76 of 2016."
The Joint Chambers also recall judgment no. 138 of 2010, by which this Court declared inadmissible the questions then raised by the referring judges, who sought an additive ruling extending the entire regulation of civil marriage to the union of persons of the same sex. Indeed, it is "from the reasoning of this ruling" that they believe they must start for the purpose of presenting the questions of constitutional legitimacy in the terms indicated above. This is because, on that occasion, this Court, while highlighting the diversity between marriage and same-sex unions and recognizing that it is for the legislator to define the protections of the latter, did not fail to qualify it as a social formation capable of allowing the free development of the human person in social life, reserving the possibility of intervening, through a reasonableness check, to protect specific situations where the need for homogeneous treatment between the married heterosexual couple and the homosexual couple was detectable.
"It is this [reasonableness] check" that the referring Joint Chambers "intend to solicit in the present case": a right would in fact be at stake which, participating in the same social security function proper to the pension treatment and realizing the ultra-activity of family solidarity, could well be led back into the stream of fundamental rights, "in the presence of which the difference from the family founded on marriage becomes recessive, and the additive intervention [...] aimed at rendering the condition of the same-sex couple homogeneous with that of the married couple is justified, in the event that the former was prevented, by reason of the regulations in force ratione temporis, from the recognition of the bond contracted abroad."
8.1.– Having stated this, it must be recalled that the original function of the pension attributed to the surviving spouse first by Art. 104 of Royal Decree no. 70 of 21 February 1895 (which approves the consolidated text of the laws on civil and military pensions), then by Art. 13 of R.D.L. no. 636 of 1939, as converted, consisted not so much in the need to "eliminate a state of need" (as instead provided "by the provisions extending the benefit of reversibility to other categories of subjects such as adult children, collaterals, and ancestors"), but in that of "sheltering the spouse from the very eventuality of need." The proof is that "no conditions other than those constitutive of the right to a pension of the deceased worker were required for the surviving wife," while "[t]he lack of indication of the husband among the beneficiaries of the reversibility treatment" was strictly correlated "to the civil discipline which, in the face of any work income of the wife, did not provide for an obligation of destination for the husband's sustenance, if not for the exceptional hypothesis that he did not have sufficient means and within the limits of such state of need" (judgment no. 6 of 1980).
Art. 24 of Law no. 151 of 19 May 1975 (Reform of Family Law), replacing Art. 143 of the Civil Code with the provision that "[b]oth spouses are required, each in relation to their own means and to their own capacity for professional or household work, to contribute to the needs of the family," gave evidence to the fact "of undeniable social relevance" that "the work of the married woman, independently of any statistical consideration of frequency, [had] come to assume [...] a connotation not different from that of the husband's work, regarding the destination of the relative income within the family, for the satisfaction of the common interests of this" (again judgment no. 6 of 1980). Precisely for this reason, this Court could only declare the constitutional illegitimacy of the norm now under scrutiny insofar as it established that "if the survivor is the husband the pension is paid only in the case that he is recognized as unable to work": "[h]aving [...] to recognize that the function of economic contribution to the family performed by the working income of the wife (where this in fact exists) is identical to that ensured by the working income of the husband, it follows that the regulation on reversibility, which intends to perpetuate such economic contribution beyond the death of the working spouse, cannot rationally distinguish in the regulation the two situations (under the considered profile identical) consequent respectively to the death of the wife or of the husband insured or pensioner" (again judgment no. 6 of 1980).
8.2.– The consideration of the labor and economic contribution to the family’s assets (and therefore also to those of the other spouse) was particularly valued by the case law of legitimacy in the aftermath of the amendment of Art. 9, paragraph 2, of Law no. 898 of 1 December 1970 (Regulation of cases of dissolution of marriage), by Art. 13 of Law no. 74 of 6 March 1987 (New rules on the regulation of cases of dissolution of marriage), which—as is known—added to the beneficiaries of the survivor’s pension "the spouse against whom a judgment of dissolution or cessation of the civil effects of marriage has been pronounced," provided that they have not remarried and are holders of a divorce allowance, and provided that the relationship from which the pension treatment originates is prior to the divorce judgment.
In interpreting such norm, in fact, the Joint Chambers of the Court of Cassation observed that "the reversibility treatment has its foundation and its prerequisite not in a situation of dependency on the pensioner or a state of need, but rather, and exclusively, in the incidence of the contribution (direct or indirect) of each of the spouses on the formation not only of the common assets but, also, of those of the other spouse," deriving logically the consequence that "the right to treatment arises in the divorced spouse autonomously and automatically at the moment of the pensioner's death, but by virtue of an expectation matured, always in an autonomous and definitive way, during the marital life, so it is insusceptible of being nullified by the subsequent course of events relative to the marital relationship," including, indeed, the dissolution (Court of Cassation, Joint Civil Chambers, judgment no. 159 of 12 January 1998).
8.3.– Having stated this, the question is founded in the following terms.
As recalled by the referring Joint Chambers, the case law of this Court has repeatedly excluded that, on a constitutional level, there exists a need for "equiparation of same-sex unions to marriage" (judgment no. 138 of 2010, recalled lastly by judgments no. 148 and no. 66 of 2024); marriage, indeed, by reason of the profound differences that distinguish it from a simple union, is not assumable in its entirety as a valid tertium comparationis, according to the criteria enunciated by the case law of this Court (on which, lastly, judgment no. 54 of 2026). The comparison between marriage and same-sex union (as well as with other forms of union or cohabitation) is instead possible for specific profiles, when the different treatment configures a hypothesis of unreasonableness. It is therefore only in relation to "particular hypotheses" that this Court evoked the possibility that the treatment different from that reserved for the couple joined in marriage could be considered constitutionally illegitimate, where the diversity clashes, indeed, with the principle of reasonableness.
Such unreasonableness was excluded when, precisely in relation to the survivor's pension, the question arose of the disparity of treatment inherent in the attribution of the survivor’s pension to the spouse, even if separated or divorced, and not instead to the cohabitant more uxorio, even if their relationship with the de cuius was characterized by the same traits of stability and certainty typical of the marital relationship: in that circumstance, in fact, this Court observed that "[u]nlike the marital relationship, cohabitation more uxorio is based exclusively on daily affectio," which is "freely and at any instant revocable," and on the "inexistence of those reciprocal rights and duties, both personal and patrimonial, that arise from marriage," consequently identifying in the "failure to include the cohabitant among the subjects benefiting from the reversibility treatment" a "non-unreasonable justification in the circumstance that such pension is genetically linked to a pre-existing legal relationship which by definition is missing here" (judgment no. 461 of 2000).
8.4.– While maintaining the considerations of the previous point, which exclude from the outset the possibility of equating, for the purposes of reversibility treatment, the situation of the same-sex or heterosexual couple cohabiting more uxorio to that of the married couple (or even to that joined civilly which is the subject of specific regulation), the peculiarity of the present case is twofold: 1) the same-sex couple had contracted marriage abroad as early as 2013 and found themselves in the impossibility of having legal effects attributed to it in the Italian legal system since at the time of the facts relevant in the a quo proceedings there was no norm that allowed for the conferring of the effects of a civil union to marriage contracted abroad between Italian citizens of the same sex (consistent case law since Court of Cassation, First Civil Section, judgment no. 4184 of 15 March 2012); 2) the death of the insured spouse occurred on 8 October 2015, that is, before the entry into force of Law no. 76 of 2016 and Art. 1, paragraph 1, letter a), of Legislative Decree no. 7 of 2017, which would have allowed each of the spouses to have the effects of a civil union attributed to the marriage contracted, as the provisions of Law no. 76 of 2016 and the related delegated decrees (Legislative Decree no. 7 of 2017 and Legislative Decree no. 5 of 19 January 2017, entitled "Adjustment of the provisions of the civil status regulation regarding registrations, transcriptions, and annotations, as well as regulatory modifications and additions for the regulation of civil unions, pursuant to Article 1, paragraph 28, letters a) and c), of Law no. 76 of 20 May 2016") had to apply also to bonds constituted before their entry into force (Court of Cassation, First Civil Section, judgment no. 11696 of 14 May 2018). We are facing, therefore, a completely particular case, in which the protection ensured to a personal bond to which the legal system, now, attributes the effects of a civil union was not recognized due to the mere occurrence of death prior to the entry into force of the legislative discipline that introduced such an institution.
8.5.– Having stated this, it must be added that the case law of this Court is constant in considering that the reasonableness of a treatment "can be called into question also according to a criterion of anachronism" (judgment no. 223 of 2015), that is, evaluating the obsolescence of the past choice in light of the novelty (in the sense of currentness) of the present choice.
It follows that, in the presence of a legislative choice now aimed at recognizing to same-sex marriages contracted abroad the effects of the civil union regulated by Italian law and at equating, for the purposes of the attribution of the survivor’s pension, the spouse and the person in a civil union, the exclusion from pension treatment of the surviving partner in the event of the death of the other member of the same-sex couple occurring prior to the entry into force of Law no. 76 of 2016, despite the formalization of the bond abroad, determines "an unjustified disparity of treatment compared to the other categories of parties entitled to the reversibility pension" (judgment no. 139 of 1979). Since the survivor’s pension values the contribution that each spouse gave to the formation not only of the common assets, but also of those of the other spouse, the differentiation between the treatment now guaranteed not only to spouses, but also to those in civil unions, and that due to those who could not timely provide the marriage bond contracted abroad with effectiveness due to the previous prohibition of law and the unfortunate event of death, is not reasonable. In the circumscribed case submitted to this Court, in fact, it is not a matter of a sort of anticipation of the protections provided by Law no. 76 of 2016 and Legislative Decree no. 7 of 2017, but only the combination of the event of death with its occurring at a moment prior to the entry into force of such primary sources.
Nor could it be held that the statement, found in judgment no. 461 of 2000 of this Court, that the pension treatment of reversibility "certainly does not belong to the inviolable rights of man presided over by Art. 2 of the Constitution" or the history that the discipline of such treatment experienced in the Constituent Assembly (it is well known that at the afternoon session of 10 May 1947 an amendment by the Hon. Merighi, aimed at inserting in the text of the project under vote the phrase "and in the event of death the family has the right to a pension"—with a vote preceded by a sharp intervention against it by the Hon. Laconi, who, while appreciating the spirit of the initiative, observed how the question "is not a matter of Constitution"—was rejected) induce different conclusions. Although the legislator may enjoy, in the matter, a significant space of discretion, it remains firm that "the ratio of the reversibility of pension treatments consists in having their enjoyment continue at least partially, even after the death of their holder, by the subjects linked to him by certain family bonds, thus guaranteeing to the beneficiaries protection from the consequences that derive from the death of the relative (see the judgments no. 70 of 1999, no. 18 of 1998, no. 495 of 1993, and no. 286 of 1987)" (judgment no. 180 of 1999). Since "[a] form of ultra-activity of family solidarity is thus realized, also on a social security level" (so, subsequently, the same ruling now cited), a legislative choice that—unreasonably—affects such solidarity cannot be considered compliant with the Constitution.
The constitutional illegitimacy of Art. 13 of R.D.L. no. 636 of 1939, as converted, must therefore be declared, for violation of Art. 3 of the Constitution, insofar as it does not allow the attribution of the survivor’s pension in favor of the surviving partner of a same-sex couple bound by a marriage bond contracted abroad in the event of the death of the other member of the couple occurring before the entry into force of Law no. 76 of 20 May 2016.
Consequently, the challenges evoking Articles 2, 36 (first paragraph), and 38 of the Constitution are absorbed.
8.6.– It must be added in any case that the formal absence of Art. 3 of the Constitution among the parameters evoked by the referring Joint Chambers, highlighted by the President of the Council of Ministers in order to object to the inadmissibility of the questions (supra, point 6.4.), does not prevent the aforementioned declaration of constitutional illegitimacy.
For constant case law of this Court, in fact, "the question of constitutional legitimacy must be 'scrutinized having regard also to the constitutional parameters not formally evoked [...], provided that [the referral order] makes clear reference to them, albeit implicit [...], through the recall of the principles enunciated by them' (ex multis judgments no. 170 of 2008, no. 26 of 2003, no. 69 of 1999, no. 99 of 1997)" (judgment no. 227 of 2010; more recently, substantially in the same sense, judgment no. 111 of 2025). In the present case, the referring Joint Chambers, while not formally evoking the parameter of Art. 3 of the Constitution, solicited precisely that "reasonableness check" (see the previous point 1.3.) which constant constitutional case law (and especially the cited judgment no. 138 of 2010) linked to the provision of the first paragraph of that article.
for these reasons
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Art. 13 of Royal Decree-Law no. 636 of 14 April 1939 (Amendments to the provisions on compulsory insurance for invalidity and old age, tuberculosis, and involuntary unemployment, and the replacement of maternity insurance with compulsory marriage and birth insurance), converted, with amendments, into Law no. 1272 of 6 July 1939, insofar as it does not allow the attribution of the survivor’s pension in favor of the surviving partner of a same-sex couple bound by a marriage bond contracted abroad in the event of the death of the other member of the couple occurring before the entry into force of Law no. 76 of 20 May 2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation).
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 25 February 2026.
Signed:
Giovanni AMOROSO, President
Massimo LUCIANI, Rapporteur
Igor DI BERNARDINI, Clerk
Filed in the Clerk's Office on 28 May 2026
The anonymized version conforms, in the text, to the original