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In the Matter of the Estate of Florian A. Maldonado (07/22/2005) sp-5926
In the Matter of the Estate of Florian A. Maldonado (07/22/2005) sp-5926
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| IN THE MATTER OF THE ESTATE
| ) |
|
OF FLORIAN A. MALDONADO, | ) Supreme Court
No. S-11067 |
|
JR., Deceased:
| ) |
|
| ) Superior Court
No. |
|
BARBARA MALDONADO, | ) 4FA-99-648
PR/E |
|
Surviving Spouse,
| ) |
|
| ) |
|
Petitioner, | ) O P I N I
O N |
|
v. | ) |
|
| ) |
|
BROOKS BAILEY, Personal | ) [No. 5926
- July 22,
2005] |
|
Representative of the Estate of
| ) |
|
Florian A. Maldonado, Jr., and
| ) |
|
WILLIAM SCHENDEL, ESQ., | ) |
|
Guardian ad Litem of the Minor | ) |
|
Children, JADEN MALDONADO | ) |
|
and CHERISH MALDONADO, | )
|
|
| ) |
|
Respondents. | ) |
|
|
|
|
Petition for Review
from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Charles R. Pengilly, Judge.
Appearances: Joseph L. Paskvan, Paskvan,
Ringstad, Parrish, P.C., Fairbanks, for
Petitioner. Richard W. Hompesch II, Hompesch
& Evans, P.C., Fairbanks, for Respondent
Brooks Bailey. William B. Schendel, Winfree
Law Office, A.P.C., Fairbanks, for Respondent
Guardian ad Litem.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
We granted review to determine whether a surviving
spouses wrongful death proceeds should be included within the
decedents augmented estate as property of the surviving spouse,
thereby offsetting the surviving spouses elective share. The
superior court included the wrongful death proceeds in the
augmented estate on the theory that it was property owned by the
surviving spouse at the decedents death. Because we conclude that
any interest in wrongful death proceeds is not owned by the
surviving spouse at the time of the decedents death, we reverse
the decision of the superior court. However, because proceeds
from survivorship claims should be classified as probate assets,
we remand to the superior court to determine what portion, if
any, of the settlement agreement represented payment for the
decedents survivorship claims, and to include that amount within
the augmented estate.
II. FACTS AND PROCEEDINGS
Florian Maldonado, Jr., the decedent, died testate on
November 28, 1999 due to mesothelioma, a type of lung cancer
caused by exposure to asbestos. He was survived by his wife,
Barbara Maldonado, and two minor children, Jaden and Cherish
Maldonado. Florian adopted Jaden and Cherish before his marriage
to Barbara and was the childrens sole legal parent.
On November 22, 1999 Florian executed a will devising
to Barbara her elective share, homestead allowance, and family
allowance as provided by AS 13.12.202,[1] AS 13.12.402,[2] and AS
13.12.404.[3] He left the remainder of his estate to Jaden and
Cherish, in trust until they reach the age of twenty-five.
Before he died, Florian filed suit in Washington
against numerous asbestos manufacturers and suppliers alleging
injury from asbestosis, and some of these claims were settled
before his death. After Florian died, the estates personal
representative added claims against these defendants for wrongful
death. Shortly thereafter, the estate settled these claims for
approximately $945,000. The settlement agreements purported to
resolve all claims against the defendants, including wrongful
death, surviving personal injury claims, loss of consortium, and
other claims. Barbara and the guardian ad litem (GAL) then
agreed to distribute forty percent of the net settlement proceeds
to Barbara and thirty percent to each of the children.
Pursuant to the will, Barbara sought to collect her
elective share of the decedents augmented estate under AS
13.12.202. The GAL argued that Barbaras interest in the wrongful
death proceeds should be included in the decedents augmented
estate under AS 13.12.207, on the theory that Barbara owned this
interest at the time of Florians death, and accordingly moved for
partial summary judgment on this issue. Barbara opposed the
motion.4 Following the recommendation of the probate master, the
superior court agreed with the GAL.
We granted Barbaras petition for review on this issue.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo,
determining whether there are any genuine issues of material fact
and whether the moving party is entitled to judgment as a matter
of law.5 We review questions of law de novo, adopting the rule
of law that is most persuasive in light of precedent, reason, and
policy.6
IV. DISCUSSION
I. Whether a surviving spouses interest in a wrongful death
recovery is included in the decedents augmented estate for the
elective share calculation is an issue of first impression in
Alaska. Barbara argues that the superior court erred in
concluding that her interest in a wrongful death recovery is
property that she owned at the time of her husbands death. The
GAL counters that such a property interest is owned at death by
the surviving spouse and should be included in the augmented
estate. Resolution of this question turns on interpretation of
Alaskas elective share statute.
A. Alaskas Elective Share Law
An elective share statute entitles a surviving spouse
to choose to take as provided by the decedents will or to take a
statutory percentage of the decedents augmented estate. Alaskas
elective share law entitles the surviving spouse to take an
elective share equal to one-third of the decedents augmented
estate.7 Elective share laws were enacted in response to the
concern, especially in common law property states, that the
surviving spouse would not receive a fair share of the decedents
estate where the decedents will and non-probate transfers
unreasonably favored other parties.8 Because Florian devised to
Barbara her elective share under the statute, Barbaras elective
share ceased to be an election; it is her primary inheritance
under the will.
An augmented estate consists of the sum of four types
of property: (1) the decedents net probate estate;9 (2) the
decedents non-probate transfers to parties other than the
surviving spouse;10 (3) the decedents non-probate transfers to the
surviving spouse;11 and (4) the surviving spouses property and
nonprobate transfers to others.12 All property under these
headings must be included in the augmented estate, whether real
or personal, movable or immovable, tangible or intangible,
wherever situated.13 Property is defined elsewhere in the probate
code as anything that may be the subject of ownership, and
includes both real and personal property and an interest in real
or personal property.14
The drafters of the Uniform Probate Code (UPC) gave two
primary justifications for augmenting the probate estate to
include various forms of property not actually owned by the
decedent at death, when calculating the elective share:
(1) to prevent the owner of wealth from
making arrangements which transmit his
property to others by means other than
probate deliberately to defeat the right of
the surviving spouse to a share, and (2) to
prevent the surviving spouse from electing a
share of the probate estate when the spouse
has received a fair share of the total wealth
of the decedent either during the lifetime of
the decedent or at death by life insurance,
joint tenancy assets and other nonprobate
arrangements.[15]
The elective share amount under the augmented estate calculation
thus attempts to strike a balance between under- and over-
inheritance to the surviving spouse.
In 1990 the elective share and augmented estate
provisions of the UPC were overhauled with the goal of bringing
elective-share law into line with the contemporary view of
marriage as an economic partnership.16 In 1996 the Alaska
legislature adopted some of the revisions to the UPCs elective
share law, while specifically rejecting others.17 The
legislature followed the revised UPC by including within the
augmented estate certain nonprobate assets, such as life
insurance payable to third parties, as well as the spouses
property owned at the decedents death regardless of whether the
property was derived from the decedent.18 On the other hand, the
legislature rejected the UPCs accrual theory of election, which
would have entitled a surviving spouse to receive up to half of
the augmented estate depending on the length of the marriage, and
instead kept the elective share amount fixed for all spouses at
one-third of the augmented estate.19 It thus remains to some
extent unclear whether the legislature approved the economic
partnership justification behind the elective share statutes.20
This case requires us to determine whether the wrongful
death proceeds realized by Barbara from the settlement with the
asbestos manufacturers and suppliers are part of the augmented
estate. We consider first whether the proceeds are part of the
net probate estate, under AS 13.12.204. Next, we consider the
GALs argument that they are part of the surviving spouses
property under AS 13.12.207.
B. Wrongful Death Proceeds to a Spouse Are Not Included in
the Net Probate Estate.
We first consider whether proceeds or unlitigated
claims of a surviving spouse under Alaskas wrongful death statute
are included within the decedents net probate estate, the first
category of property in the augmented estate calculation. For
the reasons that follow, we conclude that they are not.
An action for wrongful death in Alaska, which was
created by statute,21 is intended to compensate those individuals
who have suffered direct losses as a result of the decedents
death.22 Alaska Statute 09.55.580 allows an estates personal
representative to seek damages against a party whose wrongful
acts or omissions caused the decedents death, so long as the
decedent would have been able to maintain a cause of action
against that party for an injury caused by the same acts or
omissions had he or she lived. When the decedent is not survived
by a spouse, children, or other dependents, the statute instructs
that the amount recovered shall be administered as other personal
property of the decedent but shall be limited to pecuniary loss.23
In these cases, the personal representative is the real party in
interest24 and the amounts recovered are to be included within the
probate estate.25
However, as in this case, when the decedent is survived
by a spouse, children, or other dependents, the compensation
recovered shall be exclusively for [their] benefit.26 In these
cases, the real party in interest is the spouse or children, and
the personal representative is but a nominal party.27 Damages are
not measured by the losses to the decedent; rather, damages are
measured by the losses to the survivors.28 Damages may include
awards for harms such as (1) the deprivation of the expectation
of pecuniary benefits that would have resulted had the decedent
continued to live; (2) loss of contributions for support; (3)
loss of assistance or services; (4) loss of consortium; (5) loss
of prospective training and education; and (6) medical and
funeral expenses.29
As a consequence of this statutory scheme, we have held
that wrongful death proceeds are included in the net probate
estate when the decedent is not survived by a spouse, children,
or other dependents, but that the proceeds are excluded from the
net probate estate when the decedent is survived by such
individuals.30 Thus, the wrongful death proceeds received by
Barbara should not be included in the augmented estate under the
first category of property, i.e., property within the net probate
estate.
C. The Surviving Spouses Interest in Wrongful Death
Proceeds Is Not Property Owned at Decedents Death.
We turn next to the question of whether the wrongful
death proceeds can be included under the last category of
property within the augmented estate: property owned by the
surviving spouse at the decedents death.31 This presents a
question of first impression in Alaska and requires
interpretation of Alaska probate law. When interpreting a
statute, we consider its language, its purpose, and its
legislative history, in an attempt to give effect to the
legislatures intent, with due regard for the meaning the
statutory language conveys to others 32 and adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy.33 We conclude that the proceeds should not be included as
property of the surviving spouse.
As mentioned above, the augmented estate includes the
surviving spouses property and nonprobate transfers to others.34
This category was added when the probate code was revised; it
reflects the desire to implement the partnership theory of
marriage. It would decrease or even eliminate the entitlement of
a surviving spouse in cases in which the marital assets were more
or less equally titled or disproportionately titled in the
surviving spouses name.35 The surviving spouses property is
defined by AS 13.12.207(a) as:
(1) property that was owned by the decedents
surviving spouse at the decedents death,
including
(A) the surviving spouses fractional
interest in property held in joint tenancy
with the right of survivorship;
(B) the surviving spouses ownership
interest in property or accounts held in co-
ownership registration with the right of
survivorship; and
(C) property that passed to the
surviving spouse by reason of the decedents
death, but not including the spouses right to
homestead allowance, family allowance, exempt
property, or payments under 42 U.S.C. 301
1397f (Social Security Act); and
(2) property that would have been included in
the surviving spouses nonprobate transfers to
others, other than the spouses fractional and
ownership interests included under (1)(A) or
(B) of this subsection, had the spouse been
the decedent.
(Emphases added.) Thus, the statute includes both property owned
by the surviving spouse at the time of the decedents death and
property that passed to the surviving spouse by reason of the
decedents death. The value of the surviving spouses property
under AS 13.12.207 will be applied to satisfy the elective share
before probate assets or nonprobate transfers are touched.36
It may well be that a recovery under the wrongful death
statute would qualify as property under the probate code,
regardless of whether the recovery has been reduced to actual
proceeds or whether it remains an unlitigated interest. Property
is defined expansively as anything that may be the subject of
ownership, and includes both real and personal property and an
interest in real or personal property,37 and it is included within
the augmented estate whether real or personal, movable or
immovable, tangible or intangible, wherever situated.38 Moreover,
we have held in other circumstances that individuals have a
property interest in unlitigated claims, at least to the extent
that their interest in the claims cannot be taken away by the
government without due process of law.39
But we need not decide whether to extend the holding of
these cases to the present controversy, because even if the
wrongful death proceeds are property under the probate code, we
conclude today that they could not have been owned by the
surviving spouse at the time of the decedents death, as is
required under AS 13.12.207. We reach this conclusion because
the wrongful death statute, AS 09.55.580,40 provides that a cause
of action for wrongful death does not vest until after the death
of the decedent. As discussed above, a wrongful death action is
independent and distinct from the action that the decedent would
have been able to bring had he or she survived; in other words,
it is not a derivative action.41 The action cannot exist, and
cannot vest in any survivors, until a death has occurred.42
Moreover, the statute explains that the action must be commenced
within two years after the death.43 The statute of limitations
begins to run immediately after the death, not after the tort
which caused the injury.44 Thus we conclude that any interests or
proceeds in wrongful death cannot be considered property owned by
the surviving spouse at the time of the decedents death.
Similarly, wrongful death proceeds are not property
that passe[s] to the surviving spouse by reason of the decedents
death.45 While this statutory language might include property
within the augmented estate that vests in the surviving spouse
immediately after the decedents death, it cannot be said that
wrongful death proceeds pass to the surviving spouse by reason of
the decedents death. The verb pass connotes that the assets pre-
existed the decedents death. The expectancy interest in wrongful
death proceeds is an asset that is created by reason of the
decedents death; it is not an asset that passes from one owner to
another.
The Second Circuit came to a similar conclusion in an
estate tax case.46 It held that a right of action for wrongful
death proceeds cannot be considered property owned at death:
Simple logic mandates the conclusion that an action for wrongful
death cannot exist until a decedent has died, at which point, he
is no longer a person capable of owning any property interests.47
The court differentiated pre-existing property interests and
noted that a wrongful death action itself has sprung from the
fact that the death has taken place and that there was no
property interest in the decedent which passed by virtue of his
death, but rather one which arose after his death.48 We find this
logic to apply equally to the elective share provisions.
We reject the GALs attempt to analogize wrongful death
proceeds to life insurance proceeds. The payout under a
decedents life insurance policy represents a nonprobate transfer
that is added back into the augmented estate, regardless of
whether the beneficiary was the surviving spouse49 or some other
third party.50 But there are important differences between life
insurance and wrongful death proceeds. First, a life insurance
policy exists pursuant to a contractual agreement, which vests
some parties with property interests in the contract before the
decedents death.51 Thus it can be said that a survivor has a
contractual interest in the property at the time of death, or, in
the case where the surviving spouse is a life insurance
beneficiary, that the property, previously owned by the decedent
or a third party, passed to the surviving spouse by reason of the
decedents death. Second, for the reasons that follow, we are
satisfied that the legislative history of the elective share
statute and the policy behind the wrongful death statute support
treating wrongful death proceeds differently from life insurance
and other contractual rights to payment.
1. Legislative history
Alaska legislators looked to the Uniform Probate Code
in revising Alaskas probate laws.52 Yet a review of the UPCs
commentary and of the legislative history of amendments to AS
13.12.203-.207 reveals no indication that wrongful death proceeds
were intended to be included within the augmented estate as
property of the surviving spouse.
The commentary to the UPC discusses thirty-four
examples of property in the augmented estate,53 nine of which
specifically fall under the category of property owned by the
surviving spouse at decedents death under 2-207.54 Not one
example includes or is analogous to an interest in wrongful death
proceeds. Moreover, the examples contemplated under 2-207 all
represent contractual interests, such as life insurance policies
or irrevocable inter vivos trusts, which are substantially
different from an independent claim for damages like wrongful
death that arises after the passing of the decedent.
The legislative history behind Alaskas adoption of its
augmented estate provisions is likewise devoid of any reference
to a surviving spouses interest in wrongful death recovery.55 The
issues that were of primary concern to the Alaska Legislature
were the inclusion of life insurance proceeds and of wealth held
in nonprobate assets, such as retirement funds and joint
tenancies.56 There is no evidence that the legislature
contemplated wrongful death proceeds or the result sought by the
appellees in this case.
Although it is difficult to determine legislative
intent through omissions, we are satisfied that the lack of any
mention of wrongful death proceeds within the augmented estate,
either by the drafters of the UPC in their extensive commentary,
or by Alaska legislators in their discussions of the proposed
law, provides support for todays holding.
2. Policy behind wrongful death recovery
We also find that the policy behind wrongful death
recovery militates against including the proceeds within the
augmented estate and thereby offsetting the surviving spouses
inheritance under the elective share. Wrongful death recovery
must not be viewed as a form of inheritance or as a property
transfer from one spouse to another, or from a parent to a child.
Rather, it is an action in tort with the primary purpose of
compensating the spouse and any dependents for the losses that
they have suffered as a result of the death.57 Claimants may be
awarded prospective inheritance, loss of support, loss of
consortium, and other damages in order to make them whole for the
harm caused to them by the wrongful death of a spouse or parent.58
It is plainly unreasonable to use this restorative amount to
offset a surviving spouses statutorily authorized elective share.59
We therefore conclude that any interests in or proceeds from a
wrongful death claim are not included within the augmented estate
for the purposes of calculating the surviving spouses elective
share.
D. The Superior Court on Remand Must Determine What
Portion, If Any, of the Recovery Was Attributable to
Survivorship Claims.
The above analysis regarding wrongful death claims does
not apply to survivorship claims. Alaska Statute 09.55.570
permits all causes of action held by a person to survive that
persons death, and allows the action to be pursued by the
personal representatives of the estate. The survival action
comes into existence at the time of injury and may compensate the
victim only for the period between the time of injury and the
time of death. Unlike wrongful death claims, survivorship claims
are wholly derivative of the decedents pre-existing causes of
action and compensate the estate only for those injuries suffered
by the decedent prior to the death; the claims do not compensate
the survivors for their own harms.60
We have recognized that [a]ny survivorship damages
would become part of the decedents estate.61 We uphold this
principle today. Survivorship damages may be sought by the
personal representative for the benefit of the estate, not for
the benefit of any particular survivor. Such a claim therefore
resembles a wrongful death action only where the decedent is not
survived by a spouse or dependent.62 Thus, survivorship proceeds
should be included within the decedents net probate assets and,
by extension, the augmented estate for the surviving spouses
elective share.
The record is unclear regarding what portion, if any,
of the settlements with the asbestos manufacturers and suppliers
can be attributed to survivorship claims. While the parties and
even the superior court refer to the proceeds solely as wrongful
death proceeds, the settlement agreements themselves suggest
otherwise. One settlement released the defendant from all claims
for surviving personal injury, loss of consortium, or wrongful
death. The other two settlement agreements purport to settle all
wrongful death claims as well as all claims brought by Florian
prior to his death. These agreements describe both the claims
brought by Florian prior to death and the injuries suffered by
him, in addition to the wrongful death injuries suffered by
family members.
From this language, it may well be that some portion of
the $945,000 in settlements compensated the estate for Florians
surviving causes of action. However, the settlement agreements
and the remainder of the record give no clue as to what that
portion might be. On remand, the superior court should determine
what portion, if any, of the recovery under the settlement
agreements is attributable to Florians surviving claims, in
distinction to the parties wrongful death claims. That amount
which is deemed survivorship claim recovery should be included in
the augmented estate for the purposes of determining Barbaras
elective share. However, that amount which is deemed wrongful
death recovery should be excluded.
V. CONCLUSION
Because wrongful death proceeds are not property owned
by the surviving spouse at the time of the decedents death, they
should not be included within the augmented estate under the
elective share statutes. We therefore REVERSE the superior
courts decision to treat all of the settlement proceeds as part
of the augmented estate. We REMAND for determination of what
portion, if any, of the settlement is attributable to
survivorship claims; only that amount may be included within the
augmented estate.
_______________________________
1 AS 13.12.202(a) gives the surviving spouse the right of
election to take an elective share amount equal to one-third of
the augmented estate.
2 AS 13.12.402 entitles the surviving spouse to a
homestead allowance of $27,000.
3 AS 13.12.404(a) provides that the decedents surviving
spouse and minor children . . . are entitled to a reasonable
allowance in money out of the estate for their maintenance during
the period of administration.
4 The consequence to Barbara of this legal determination
is substantial. The net assets of the probate estate total
around $110,000. The inclusion of Barbaras interest in the
wrongful death proceeds, $378,000, would therefore dramatically
increase the decedents augmented estate under the probate code.
While Barbaras one-third elective share of the augmented estate
would accordingly increase in value, the funds used to satisfy
her elective share amount would come primarily, if not solely,
from her settlement proceeds. See AS 13.12.209(a) and infra
n.37. In other words, she would receive little-to-no
distribution from the net assets of the probate estate under the
will. In contrast, if Barbaras interest in the settlement is not
considered part of the augmented estate, then the settlement
amount would be not charged against Barbara, but received in
addition to her elective share.
5 Mount Juneau Enters., Inc. v. City & Borough of Juneau,
923 P.2d 769, 772-73 (Alaska 1996).
6 Carr-Gottstein Props., L.P. v. Benedict, 72 P.3d 308,
310 (Alaska 2003).
7 AS 13.12.202(a). The Alaska elective share statute
only applies to a surviving spouse if the decedent died domiciled
within Alaska. Id. The elective share is obtained independently
from the surviving spouses homestead allowance, exempt property,
and family allowance, if any. AS 13.12.202(c). If one-third of
the augmented estate is less than $50,000, then the surviving
spouse is entitled to a supplemental elective share. AS
13.12.202(b).
8 See Unif. Probate Code, Art. II, Pt. 2, gen. cmt. (Pre-
1990 Version), 8 U.L.A. 292 (1998).
9 AS 13.12.203. The net probate estate includes the value
of the decedents probate estate, reduced by funeral and
administrative expenses, homestead allowance, family allowances,
exempt property, and enforceable claims. AS 13.12.204.
10 AS 13.12.203. See also AS 13.12.205 (identifying non-
probate transfers to non-spouses that are included in augmented
estate).
11 AS 13.12.203. See also AS 13.12.206 (identifying non-
probate transfers to surviving spouse that are included in
augmented estate).
12 AS 13.12.203. See also AS 13.12.207 (identifying
surviving spouses property held at time of decedents death that
is included in augmented estate).
13 AS 13.12.203.
14 AS 13.06.050(39).
15 Unif. Probate Code 2-202 cmt. (Pre-1990 Version), 8
U.L.A. 299 (1998).
16 Unif. Probate Code, Art II, Pt. 2, gen. cmt. (Revised
1990 Version) (amended 1993), 8 U.L.A. 93 (1998). Professor
Lawrence Waggoner describes the 1990 revisions to the UPCs
elective share law as using a mechanical formula to implement[]
the partnership theory by approximation. Lawrence W. Waggoner,
Marital Property Rights in Transition, 59 Mo. L. Rev. 21, 52
(1994).
17 Rep. Parnell, Sponsor Statement for House Bill (H.B.)
308, 19th Leg., 2d Sess. (1996), in House Jud. Comm. File, H.B.
308. See also 1996 House Journal 2661 (rejecting Rep.
Finkelsteins proposed amendment to H.B. 308 to include 2-202 of
revised UPC establishing accrual theory of election).
18 AS 13.12.205, .207, as amended by ch. 75, 3, SLA 1996;
see House Jud. Comm. Mins., H.B. 308 (Oct. 16, 1995) (testimony
of Jerry Kurtz).
19 See 1996 House Journal 2661 (rejecting proposed
amendment to establish accrual theory of election); see also
House Jud. Comm. Mins., H.B. 308 (Oct. 16, 1995) (testimony of
Bob Manly) (explaining that H.B. 308 did not include accrual
theory of election because majority of Alaskan state bar probate
committee did not believe in favoring longer marriages over
shorter ones).
20 As a result, we find Barbaras request to settle the
present dispute on marriage-as-economic-partnership grounds
unconvincing.
21 Koski v. Alaska Juneau Gold Mining Co., 6 Alaska 334,
335 (D. Alaska 1921) (At common law there was no civil action for
death by wrongful act; such action is purely a creature of
statute.). See also Hannebuth v. Bell Helicopter Intl, 694 P.2d
143, 145 (Alaska 1984) (observing that cause of action for
wrongful death was created by statute).
22 In re Estate of Pushruk, 562 P.2d 329, 331 (Alaska
1977).
23 AS 09.55.580(a).
24 Pushruk, 562 P.2d at 331.
25 Id. See also Horsford v. Estate of Horsford, 561 P.2d
722, 726-27 (Alaska 1977) (wrongful death proceeds are
administered as part of estate when decedent is not survived by
spouse, children or other dependents).
26 AS 09.55.580(a).
27 Pushruk, 562 P.2d at 330-31; Koski, 6 Alaska at 335-36.
28 As a result, even though the action is based on the
injury caused to the decedent, a wrongful death action brought by
surviving beneficiaries should not be viewed as a derivative
action; rather, it is an independent and distinct cause of
action. Walls v. Am. Optical Corp., 740 So. 2d 1262, 1274 (La.
1999). See also Pushruk, 562 P.2d at 330-31; Shaw v. Jendzejec,
717 A.2d 367, 369-70 (Me. 1998). The independent nature of
wrongful death claims contrasts with survivorship claims, which
under AS 09.55.570 are brought by a personal representative on
behalf of the decedent and are plainly derivative. Walls, 740
So. 2d at 1274; Shaw, 717 A.2d at 369-70. We discuss
survivorship claims further in Part IV.D, infra.
29 AS 09.55.580(c).
30 Horsford, 561 P.2d at 726-27.
31 See AS 13.12.203, .207 (identifying surviving spouses
property held at time of decedents death that is included in
augmented estate). The superior court included the proceeds
within the augmented estate solely under this theory. In
addition, the appellees limit their arguments on appeal to the
inclusion of the proceeds under this sub-category of property.
32 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227,
1234 (Alaska 2003) (quoting Muller v. BP Exploration (Alaska)
Inc., 923 P.2d 783, 787 (Alaska 1996)).
33 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
34 AS 13.12.203. See also AS 13.12.207.
35 Unif. Probate Code, Art II, Pt. 2, gen. cmt. (Revised
1990 Version) (amended 1993), 8 U.L.A. 93 (1998). See supra nn.
16-19 and accompanying text.
36 Alaska Statute 13.12.209 mandates that, before other
components of the net probate estate or nonprobate transfers are
applied to satisfy the elective share, probate assets passing to
the surviving spouse, nonprobate transfers to the surviving
spouse, and the property of the surviving spouse under AS
13.12.207 should be applied to satisfy the elective share.
Alaska Statute 13.12.207(b) designates the decedents death as the
time to value the surviving spouses property.
37 AS 13.06.050(39).
38 AS 13.12.203.
39 Anderson v. State ex rel. Cent. Bering Sea Fishermens
Assn, 78 P.3d 710, 714 (Alaska 2003); Patrick v. Lynden Transp.,
Inc., 765 P.2d 1375, 1378 (Alaska 1988); Bush v. Reid, 516 P.2d
1215, 1219 (Alaska 1973). In Patrick we stated, [i]t is clear
that under both federal and Alaska law, an unlitigated claim is
considered a property interest. 765 P.2d at 1378.
40 For additional discussion of this statute, see supra
Part IV.B.
41 See supra n.28. See also Walls v. Am. Optical Corp.,
740 So. 2d 1262, 1270 (La. 1999) (the wrongful death action
arises at the death of the victim, and compensates the
beneficiaries for their injuries that occur at the moment of the
victims death and thereafter . . .).
42 For example, AS 09.55.580(a) entitles the personal
representative to bring the action when the death of a person is
caused by the wrongful act or omission of another. Similarly,
the surviving spouse and children are entitled to damages which
will fairly compensate for the injury resulting from the death.
AS 09.55.580(c); see Kulawik v. ERA Jet Alaska, 820 P.2d 627, 636
(Alaska 1991) (fair compensation includes recovery for loss of
prospective inheritance).
43 AS 09.55.580(a).
44 The facts of this case provide a dramatic example of
the application of these differing statutes of limitation. The
time period in which Florian could have filed claims against the
asbestos manufacturers and suppliers for his injury began to run
pursuant to the ordinary discovery rule. See Johns Heating Serv.
v. Lamb, 46 P.3d 1024, 1031-32 (Alaska 2002). In contrast, the
statute of limitations for Barbaras wrongful death claim, which
was premised on the same asbestos injury, did not begin to run
until the death occurred. That Florians statute of limitations
began to run possibly years before Barbaras reaffirms the
independent nature of her claim.
45 AS 13.12.207(a)(1)(C).
46 Connecticut Bank & Trust Co. v. United States, 465 F.2d
760, 763 (2d Cir. 1972).
47 Id.
48 Id.
49 AS 13.12.207. The comments to the revised UPC make
clear to include within the augmented estate life insurance
proceeds payable to the survivor, even if the life insurance
contract is owned by another person, because the proceeds can
rightly be considered property owned by the survivor at the time
of decedents death. See Unif. Probate Code 2-207 cmt., exs. 29-
30 (amended 1993), 8 U.L.A. 119-120 (1998).
50 AS 13.12.205(1)(D) (including value of decedents
nonprobate transfers to others, including life insurance
benefits, within augmented estate). See also Unif. Probate Code
2-205 cmt., ex. 8 (amended 1993), 8 U.L.A. 109 (1998).
51 Cf. Reynolds v. Sisco Group, Inc., 70 P.3d 388, 392
(Alaska 2003) ([t]he contractual right to payments [from a third
party] certainly is something that may be the subject of
ownership so it is unquestionably property [of the estate].).
52 See supra nn.17-19 and accompanying text.
53 See Unif. Probate Code 2-205 2-207 cmts. (amended
1993), 8 U.L.A. 107-20 (1998).
54 Id. 2-207 cmt. Eight of these examples consider the
properties of life insurance policies and irrevocable inter vivos
trusts. Id. The ninth considers a joint tenancy. Id.
55 See House Jud. Comm. File, H.B. 308; House Jud. Comm.
Mins., H.B. 308 (Oct. 16, 1995); House Jud. Comm. Mins., H.B. 308
(Jan. 19, 1996); Senate Jud. Comm. Mins., H.B. 308 (Mar. 29,
1996); 1996 House Journal 2661.
56 The primary purpose of amending the definition of
augmented estate was to address the problem of a decedent
effectively disinheriting his or her spouse by purchasing life
insurance policies benefitting someone other than the surviving
spouse. See House Jud. Comm. Mins., H.B. 308 (Oct. 16, 1995);
see also House Jud. Comm. Mins., H.B. 308 (Jan. 19, 1996)
(testimony of Bob Manly).
57 In re Estate of Pushruk, 562 P.2d 329, 331 (Alaska
1977).
58 AS 09.55.580(c); see also Kulawik v. ERA Jet Alaska,
820 P.2d 626, 636 (Alaska 1991) (loss of prospective
inheritance). See also supra Part IV.B.
59 We also note the practical risks posed to the surviving
spouse if wrongful death proceeds were included within the
augmented estate, such as the risk of the probate court
overvaluing an unlitigated claim and the risk that a debtor is
fully or partially judgment-proof.
60 See 2 Dan B. Dobbs, The Law of Torts 295, at 805
(2001) (In contrast to the wrongful death action, the survival
action does not create a new claim for the benefit of survivors.
Instead, it merely reverses the common law rule that a cause of
action abates with the death of either party.).
61 Horsford v. Estate of Horsford, 561 P.2d 722, 727 n.11
(Alaska 1977).
62 See AS 09.55.580(a); supra Part IV.B.
