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In re Estate of Maldonado7/22/2005
ard for the meaning the statutory language conveys to others' " and adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." We conclude that the proceeds should not be included as property of the surviving spouse.
As mentioned above, the augmented estate includes "the surviving spouse's property and non-probate transfers to others." 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 spouse's name." The surviving spouse's property is defined by AS 13.12.207(a) as:
(1) property that was owned by the decedent's surviving spouse at the decedent's death, including
(A) the surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;
(B) the surviving spouse's 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 decedent's death, but not including the spouse's 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 spouse's non-probate transfers to others, other than the spouse's 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 decedent's death and property that passed to the surviving spouse by reason of the decedent's death. The value of the surviving spouse's property under AS 13.12.207 will be applied to satisfy the elective share before probate assets or non-probate transfers are touched.
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," and it is included within the augmented estate "whether real or personal, movable or immovable, tangible or intangible, wherever situated." 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.
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 decedent's death, as is required under AS 13.12.207. We reach this conclusion because the wrongful death statute, AS 09.55.580, 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. The action cannot exist, and cannot vest in any survivors, until a death has occurred. Moreover, the statute explains that the action must "be commenced within two years after the death.
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