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In re Marriage of Leland3/15/1993
contingency insured against (death or disability while the policy is in force), a far greater return than merely the amount invested, together with interest thereon. Both types of policies require the payment of money in exchange for the benefit provided. An insurance policy of any kind is onerously acquired, in exchange for the payment of funds.
There are some differences, as well, primarily with respect to the nature of the risk involved. A disability policy is designed to protect against the risk of loss of the insured's future earning capacity. Earning capacity is not a divisible asset, although it is a factor to be considered when dividing the community and separate property in a dissolution proceeding. In re Marriage of Hall, 103 Wash. 2d 236, 247-48, 692 P.2d 175 (1984). An able-bodied spouse leaves a dissolved marriage with his or her earning capacity intact, and his or her former spouse has no property interest in that earning capacity. A disabled spouse leaves a dissolved marriage with his or her earning capacity impaired or nonexistent.
His or her ability to acquire assets in the future, by means of employment, is likewise impaired or nonexistent.
Certainly it can be argued rationally that, by purchasing disability insurance, a married couple insures against various risks, some of which are based on "divisible property" interests and some of which are based on other financial considerations. The risk of economic loss to the marital community (lost earnings during marriage; lost opportunity to acquire pension benefits during marriage) is based entirely upon divisible property interests. The risk that, in the event of a marital dissolution, an able-bodied spouse may be required to pay spousal maintenance for the support of a disabled spouse and the risk that a disabled spouse otherwise may be unable to meet his or her obligations for spousal and child support and for community debt service are based at least in part upon other financial considerations not usually treated as property interests.
[2-4] In this case of Leland, we need not decide whether the marital community acquired a property interest in the disability payments which Robert will receive before he turns 65. The trial court's determination that no such property interest was acquired is the law of this case. We need only decide whether the marital community acquired a property interest in such payments as Robert will receive if he remains disabled and survives beyond the age of 65. We hold that the trial court did not err in characterizing the post-age-65 payments as in the nature of a "pension" in which the marital community retains an interest. This is an equitable result, and one which does no violence to underlying concepts of Washington community property law as it applies to the proceeds of insurance policies purchased with community funds.
We are guided in our analysis by the decision of the California Supreme Court in In re Marriage of Saslow, 40 Cal. 3d 848, 710 P.2d 346, 221 Cal. Rptr. 546 (1985), taking into consideration, however, some fundamental differences between California community property law and Washington community property law.
In Saslow, during an 18-year marriage, the husband purchased three disability insurance policies, using community funds to pay the premiums. During the marriage the husband became disabled and commenced to draw disability benefits under all three policies. The policies expired at various times. At the time of trial, the husband, who was then 59 years old, was receiving $2,181 per month. At his age 60, the payments would reduce to $1,881 per month. At his age 70, the paym
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