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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.