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In re Estate of Maldonado7/22/2005
ent claim for damages like wrongful death that arises after the passing of the decedent.
The legislative history behind Alaska's adoption of its augmented estate provisions is likewise devoid of any reference to a surviving spouse's interest in wrongful death recovery. The issues that were of primary concern to the Alaska Legislature were the inclusion of life insurance proceeds and of wealth held in non-probate assets, such as retirement funds and joint tenancies. 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 today's 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 spouse's 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. 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. It is plainly unreasonable to use this restorative amount to offset a surviving spouse's statutorily authorized elective share. 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 spouse's 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 person's 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 decedent's 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.
We have recognized that " ny survivorship damages would become part of the decedent's estate." 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. Thus, survivorship proceeds should be included within the decedent's net probate assets and, by extension, the augmented estate for the surviving spouse's 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
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