The Constitutional Court recently dismantled a significant barrier to equal rights in Italy. In its Decision No. 91 of May 28, 2026, the Court declared the constitutional illegitimacy of Article 13 of Royal Decree-Law No. 636 of April 14, 1939. The ruling eliminates the discriminatory effect of this norm, according to which the surviving partner of a same-sex couple married abroad was denied the survivor's pension because the partner's death occurred before the entry into force of Law No. 76 of May 20, 2016, on civil unions.

The legal battle began when the National Social Security Institute (INPS) denied the survivor's pension to a widowing partner and their minor child, born via assisted reproduction in the United States. The INPS argued that the Italian legal framework did not recognise same-sex bonds prior to the 2016 civil unions reform. Following a favourable ruling for the family by the Court of Appeals of Milan, the INPS appealed to the Court of Cassation. The United Sections of the Court of Cassation subsequently raised the question of constitutionality, invoking Articles 2, 3, 36, and 38.2 of the Constitution.

The judges observed the peculiar circumstances of couples trapped in a legal impossibility. In this case, the couple possessed a legally valid foreign marriage certificate that could not be recognised in Italy either before or after the entry into force of Law 76/2016, because one of the spouses had passed away in 2015. The Constitutional Court ruled that denying financial protection merely due to a legislative gap prior to 2016 constitutes an unreasonable and unjustified disparity of treatment.

According to the strict legal reasoning detailed in the full judgment, the survivor's pension represents a vital continuation of family solidarity beyond death. As formulated in the Considerato in diritto section, par.3.1, the economic support function fulfilled by the deceased partner's income is identical in both same-sex and opposite-sex couples. Therefore, excluding the surviving partner from pension rights solely because the death happened before the formalisation of the partnership under the civil unions law violates the core principles of equality. The Constitutional Court further concluded in par. 4.2 that an unequal application of welfare protections constitutes discrimination and a breach of fundamental rights.

Furthermore, the Court emphasised that the survivor's pension is not merely a welfare benefit but a direct emanation of the right to social security. In par. 5.3 of the document, the judgment articulates that the current legislative choice to recognise foreign same-sex marriages as civil unions in Italy must extend retroactively to pension rights.

Ultimately, the ruling rectifies a systemic imbalance, ensuring the State's duty to protect family units applies uniformly. It marks a definitive step toward full legal equality, affirming that constitutional guarantees transcend historical legislative delays and provide crucial financial security to grieving same-sex families.