Court of Appeals Division II                                                                                                
                               State of Washington                                                                                                    
                            Opinion Information Sheet                                                                                                 
Docket Number:       22293-1-II                                                                                                                       
Title of Case:       In RE the Estate of David A. Engelhoff                                                                                           
File Date:           12/23/98                                                                                                                         
                                SOURCE OF APPEAL                                                                                                      
Appeal from Superior Court of Pierce County                                                                                                           
Docket No:      94-4-01619-1                                                                                                                          
Judgment or order under review                                                                                                                        
Date filed:     08/08/97                                                                                                                              
Judge signing:  Hon. Karen L. Strombom                                                                                                                
Authored by J. Robin Hunt                                                                                                                             
Concurring: Carroll C. Bridgewater                                                                                                                    
            David H. Armstrong                                                                                                                        
                                COUNSEL OF RECORD                                                                                                     
Counsel for Appellant(s)                                                                                                                              
            Michael W. Jordan                                                                                                                         
            Jordan Imler & McGovern                                                                                                                   
            2201 N. 30th St.                                                                                                                          
            Tacoma, WA  98403                                                                                                                         
Counsel for Respondent(s)                                                                                                                             
            Henry Haas                                                                                                                                
            Mcgavick Graves Beale & McNerthney                                                                                                        
            P.O. Box 1317                                                                                                                             
            Tacoma, WA  98401-1317                                                                                                                    
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                                                                                    
DIVISION  II                                                                                                                                          
IN THE MATTER OF THE ESTATE OF:  No.  22293-1-II                                                                                                      
DAVID A. EGELHOFF, DECEASED.     No.  22562-0-II                                                                                                      
SAMANTHA EGELHOFF, a minor by                                                                                                                         
and through her natural parent                                                                                                                        
KATE BREINER; and DAVID                                                                                                                               
EGELHOFF, a single person,                                                                                                                            
DONNA RAE EGELHOFF AND "JOHN     PUBLISHED OPINION                                                                                                    
DOE" EGELHOFF, wife and                                                                                                                               
     Hunt, J. - Decedent David Egelhoff's children from his first marriage                                                                            
appeal the grant of summary judgment to his second wife, Donna Egelhoff.1                                                                             
The trial court awarded to Donna, the named beneficiary, the proceeds of                                                                              
David's employer-provided life insurance and his pension plan benefits,                                                                               
even though she and David had dissolved their marriage more than two months                                                                           
before his death.  The trial court reasoned that ERISA2 preempted state                                                                               
law, which otherwise could operate automatically to redesignate                                                                                       
beneficiaries upon dissolution of a marriage.  Holding that ERISA does not                                                                            
preempt the state law in question and that Donna was not entitled to the                                                                              
insurance proceeds or pension funds, we reverse. 

     David and Donna Egelhoff married on November 4, 1988; they separated                                                                             
on October 1, 1993.  During their marriage, David had named Donna as the                                                                              
beneficiary of his life insurance policy and his pension plan, both                                                                                   
provided by his employer, the Boeing Company.  The decree of dissolution                                                                              
was entered on April 22, 1994.  As part of the property settlement                                                                                    
distribution, David was awarded "100% of his Boeing retirement 401K3 and                                                                              

     On June 23, 1994, David was involved in a serious car accident.  On                                                                              
July 8, 1994, he died from his injuries.  Donna was still listed as the                                                                               
beneficiary of both David's insurance policy and his pension plan.  David                                                                             
died intestate. 

     David's statutory heirs,5 his children from his first marriage, filed                                                                            
suit, alleging that under the dissolution decree's property distribution                                                                              
settlement, Donna had waived her rights to the pension plan.  After Donna                                                                             
received the insurance proceeds, the children filed a conversion action,                                                                              
alleging that Washington law, specifically RCW 11.07.010, had operated to                                                                             
remove her as the beneficiary of the insurance policy.

     The trial court entered summary judgment for Donna as to both                                                                                    
benefits.  The trial court ordered that the insurance policy be                                                                                       
"administered in accordance with the Employee Retirement Income Security                                                                              
Act and the designated beneficiary, Donna Rae Egelhoff shall have all legal                                                                           
rights to the proceeds which have been paid thereto."6  The trial court                                                                               
similarly ordered that the pension plan should be "administered in                                                                                    
accordance with the Employ{ee} Retirement Income Security Act of 1974                                                                                 
("ERISA") and that the designated beneficiary, Donna Rae Egelhoff shall                                                                               
have all legal rights thereto{.}"  The trial court stayed the order for                                                                               
summary judgment with regard to the pension plan proceeds, directing that                                                                             
they not be distributed to any party pending the outcome of this appeal.                                                                              
As noted above, the insurance proceeds had already been distributed to                                                                                
Donna before the litigation commenced. 

     The children timely appealed and we consolidated the appeals.7                                                                                   

I.  STANDARD OF REVIEW                                                                                                                                
When reviewing a trial court's order of summary judgment, we engage in the                                                                            
same inquiry as the trial court.  Wilson v. Steinbach, 98 Wn.2d 434, 437,                                                                             
656 P.2d 1030 (1982).  Summary judgment is appropriate when there is no                                                                               
genuine issue of material fact and the moving party is entitled to judgment                                                                           
as a matter of law.  See CR 56(c), Mutual of Enumclaw Ins. Co. v. Jerome,                                                                             
122 Wn.2d 157, 160, 856 P.2d 1095 (1993).  Summary judgment should be                                                                                 
granted only if reasonable persons could reach but one conclusion, after                                                                              
considering the evidence in the light most favorable to the non-moving                                                                                
party.  Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998).                                                                                   

II.  FEDERAL LAW                                                                                                                                      
     The pension plan and insurance policy at issue in this case fall under                                                                           
ERISA because they were provided by David's employer, the Boeing Company.                                                                             
ERISA regulates all employee benefits plans sponsored by an employer or an                                                                            
employee organization.  Cutler v. Phillips Petroleum Co., 124 Wn.2d 749,                                                                              
756, 881 P.2d 216 (1994).                                                                                                                             

III.  STATE LAW                                                                                                                                       
The children rely on RCW 11.07.010 to support their claim that they, and                                                                              
not Donna, should receive both the proceeds of the pension plan and the                                                                               
insurance policy. 

     RCW 11.07.010 provides: 
Nonprobate assets on dissolution or invalidation of marriage

(1) This section applies to all nonprobate assets, wherever situated, held                                                                            
at the time of entry by a superior court of this state of a decree of                                                                                 
dissolution of marriage or a declaration of invalidity.  

(2)(a) If a marriage is dissolved or invalidated, a provision made prior to                                                                           
that event that relates to the payment or transfer at death of the                                                                                    
decedent's interest in a nonprobate asset in favor of or granting an                                                                                  
interest or power to the decedent's former spouse is revoked.  A provision                                                                            
affected by this section must be interpreted, and the nonprobate asset                                                                                
affected passes, as if the former spouse failed to survive the decedent,                                                                              
having died at the time of entry of the decree of dissolution or                                                                                      
declaration of invalidity. 

. . . 

(5) As used in this section, "nonprobate asset" means those rights and                                                                                
interests of a person having beneficial ownership of an asset that pass on                                                                            
the person's death under only the following written instruments or                                                                                    
arrangements other than the decedent's will: 

(a) A payable-on-death provision of a life insurance policy, employee                                                                                 
benefit plan, annuity or similar contract, or individual retirement                                                                                   
(Emphasis added.) 

Donna argues that ERISA preempts RCW 11.07.010.  If not preempted by ERISA,                                                                           
this statute would operate to revoke Donna's status as beneficiary upon                                                                               
dissolution of her marriage to David.  This would leave no beneficiary                                                                                
listed on either the life insurance or pension plan.  As a result, under                                                                              
the terms of the pension plan, the children would receive David's pension                                                                             

With regard to the life insurance plan, RCW 48.24.160, which governs                                                                                  
beneficiaries under group life insurance plans, seems to indicate that                                                                                
every plan should contain a designation of how benefits will be paid should                                                                           
no beneficiary be listed at the time of decedent's death.9  But the life                                                                              
insurance plan in this case contains no such designation.  Because there                                                                              
are no relevant reported cases interpreting RCW 11.07.010, an analogy to                                                                              
the Uniform Simultaneous Death Act (USDA) is helpful:  Both the USDA and                                                                              
RCW 11.07.010 operate, under certain circumstances, to treat the holder of                                                                            
life insurance as surviving the beneficiary as a matter of law.  Under the                                                                            
USDA, where the beneficiary is treated as having predeceased the                                                                                      
policyholder, the proceeds of a life insurance policy belong to the                                                                                   
policyholder's estate, RCW 11.05.040, unless the insurance plan designates                                                                            
an alternate procedure for determining a beneficiary.  RCW 48.18.390.                                                                                 
Where such a policyholder has left no will, his statutory heirs inherit the                                                                           
proceeds.  In re Saunders' Estates, 51 Wn.2d 274, 276, 317 P.2d 528 (1957);                                                                           
In re Clise's Estates, 64 Wn.2d 320, 321, 391 P.2d 547 (1964). 

Similarly, under RCW 11.07.010, we treat David as having survived Donna for                                                                           
purposes of distributing life insurance proceeds.  As a result, the life                                                                              
insurance proceeds should have been paid first to David's estate and then                                                                             
to his children (as his statutory heirs) as part of his estate.  Thus,                                                                                
under RCW 11.07.010, the children, and not Donna, were entitled to both the                                                                           
insurance proceeds and the pension benefits.                                                                                                          

IV.  PREEMPTION                                                                                                                                       
ERISA preempts state laws that "relate to" employee benefits plans.10  We                                                                             
construe this phrase in accordance with Congress's intent in enacting ERISA                                                                           
- to provide uniformity in the administration of benefit programs.  Fort                                                                              
Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 11, 107 S. Ct. 2211, 96                                                                               
L.Ed.2d 1 (1987).  If state law affects ERISA-covered plans in "too                                                                                   
tenuous, remote, or peripheral a manner," the state law does not "relate{}                                                                            
to" the plan and is therefore not preempted.  Shaw v. Delta Air Lines,                                                                                
Inc., 463 U.S. 85, 100 n. 21, 103 S. Ct. 2890, 77 L.Ed.2d 490 (1983).                                                                                 
The Supreme Court has recently11 suggested that ERISA preemption should be                                                                            
limited with regard to areas traditionally left to state regulation.  See                                                                             
De Buono v. NYSA-ILA Medical and Clinical Svcs. Fund, 520 U.S. 806, 117 S.                                                                            
Ct. 1747, 1751, 138 L.Ed.2d 21 (1997).  Courts "must go beyond the                                                                                    
unhelpful text and the frustrating difficulty of defining its key term                                                                                
{'relate to'}, and look instead to the objectives of the ERISA statute as a                                                                           
guide to the scope of the state law that Congress understood would                                                                                    
survive."  New York State Conference of Blue Cross & Blue Shield Plans v.                                                                             
Travelers Ins. Co., 514 U.S. 645, 656, 115 S. Ct. 1671, 131 L.Ed.2d 695                                                                               

Washington courts have also noted this change in the focus of ERISA                                                                                   
preemption analysis.  Division One has indicated that preemption is                                                                                   
appropriate if it advances "ERISA's goal of providing uniform resolution of                                                                           
disputes for which an ERISA remedy {is} available."  Behavioral Sciences                                                                              
Institute v. Great-West Life, 84 Wn. App. 863, 871-72, 930 P.2d 933 (1997).                                                                           
Rather than basing preemption on the mention of an ERISA plan in the                                                                                  
complaint, we choose to apply a holistic approach to ERISA preemption                                                                                 
emphasizing congressional intent and the purpose of ERISA.                                                                                            
Behavioral Sciences, 84 Wn. App. at 872.  Division One has also ruled,                                                                                
"{W}e presume that ERISA does not supercede the historic police powers of                                                                             
the states unless that was the clear and manifest purpose of Congress."                                                                               
Kahn v. Salerno, 90 Wn. App. 110, 133, 951 P.2d 321 (1998). 

     Following Division One, we "begin our analysis with the presumption                                                                              
that ERISA does not preempt" the state law in question here -- that spouses                                                                           
named as insurance and pension beneficiaries automatically lose such                                                                                  
designation upon dissolution of marriage.  Kahn, 90 Wn. App. at 134; See                                                                              
also California Div. of Labor Standards Enforcement v. Dillingham Constr.,                                                                            
N.A., Inc., 519 U.S. 316, 325, 117 S. Ct. 832, 136 L.Ed.2d 791 (1997).                                                                                
"Thus, the burden is on the party arguing for preemption to show, as a                                                                                
matter of law, that it was the clear and manifest purpose of Congress to                                                                              
supersede this type of . . . claim."  Kahn, 90 Wn. App. at 134.

     The most comprehensive summary of the current state of ERISA                                                                                     
preemption law is Emard v. Hughes Aircraft Co., 153 F.3d 949 953 (9th Cir.                                                                            
1998) (citing Toumajian v. Frailey, 135 F.3d 648, 654 n. 3 (9th Cir.                                                                                  
1998)), in which the Ninth Circuit noted that "{r}ecently, the scope of                                                                               
this broad 'relate to' preemption was markedly narrowed."  The Emard court                                                                            

To guide our preemption analysis within the specific context of ERISA, we                                                                             
ask whether the state law at issue has (1) a "reference to" or (2) a                                                                                  
"connection with" an ERISA plan.                                                                                                                      
Emard, 153 F.3d at 954. 

A state law has "reference to" an ERISA plan where it "acts immediately and                                                                           
exclusively upon ERISA plans, . . . or where the existence of ERISA plans                                                                             
is essential to the law's operation."  Dillingham, 519 U.S. at 325.  RCW                                                                              
11.07.010 does not act "immediately and exclusively upon ERISA plans," nor                                                                            
is the existence of ERISA plans "essential to the law's operation."                                                                                   
Consequently, RCW 11.07.010 does not have a "reference to" ERISA plans and                                                                            
is preempted only if it has a "connection with" ERISA benefit plans.                                                                                  
The Emard court considered four factors in determining whether the                                                                                    
California statute at issue had a "connection with" ERISA "such that                                                                                  
application of the state law would frustrate ERISA's purposes": 

(1) whether the state law regulates the types of benefits of ERISA employee                                                                           
welfare benefit plans;

(2) whether the state law requires the establishment of a separate employee                                                                           
benefit plan to comply with the law;

(3) whether the state law imposes reporting, disclosure, funding, or                                                                                  
vesting requirements for ERISA plans; and 

(4) whether the state law regulates certain ERISA relationships, including                                                                            
the relationships between an ERISA plan and employer and, to the extent an                                                                            
employee benefit plan is involved, between the employer and employee.                                                                                 
Emard, 153 F.3d at 958 (quoting Operating Engineers Health and Welfare                                                                                
Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 678 (9th Cir. 1998)).  The                                                                           
Emard court determined that the first three factors were not at issue and                                                                             
then rejected the contention that the California statute violated the                                                                                 
fourth factor "by altering the administrative process for plans in                                                                                    
California and by altering the designation of beneficiaries."  Emard, 153                                                                             
F.3d at 958. 

     Although ERISA preempts state laws affecting the administration of                                                                               
employee plans, RCW 11.07.010, like the California statute at issue in                                                                                
Emard, "does not affect the administration of plans; instead, it affects                                                                              
merely the ultimate ownership of distributed benefits."  Emard, 153 F.3d at                                                                           
959.  As with the California statute at issue in Emard, under RCW                                                                                     
11.07.010, an ERISA administrator may pay insurance to the named beneficiary unless a                                                                            
contending claimant properly notifies the plan of his or her claim to the                                                                             
proceeds.  In the absence of such a claim, payment to the named beneficiary                                                                           
absolves the plan of liability for further claims.  California law                                                                                    
therefore does not alter plan administration.                                                                                                         
Emard, 153 F.3d at 959 (citations omitted).  But if a "contending claim is                                                                            
made before disbursement, the administrator can leave the determination of                                                                            
the proper recipient of the proceeds to the parties through application of                                                                            
state property law{.}"12

The court also noted that:

{u}nder the majority approach of {previous} opinions {concerning ERISA                                                                                
preemption}, application of California law concerning the designation of a                                                                            
beneficiary has a connection with ERISA and would therefore be preempted.                                                                             
Those opinions, though, rely on the Supreme Court's former approach to                                                                                
ERISA preemption, and their analyses therefore provide us little guidance.                                                                            
Applying the preemption approach required by the Court's recent cases, we                                                                             
hold that ERISA does not preempt California's law of community property in                                                                            
this instance.                                                                                                                                        
Emard, 153 F.3d at 956-57.  The court saw "no indication that Congress                                                                                
intended to safeguard an individual beneficiary's rights to the proceeds of                                                                           
an ERISA insurance plan as against another person claiming superior rights,                                                                           
under state law, to those proceeds."  Emard, 153 F.3d at 958.  The court                                                                              
also recognized that in the circumstances of a case such as this, the plan administrator must                                                                              
take certain steps to answer the complaint and either disburse the disputed                                                                           
funds to the prevailing claimant or deposit the funds with the court.  But                                                                            
this burden on the administrator is too slight to overcome the presumption                                                                            
against preemption of state family and family property law.                                                                                           
Emard, 153 F.3d at 959 (citing Boggs v. Boggs, 520 U.S. 833, 117 S. Ct.                                                                               
1754, 1760, 138 L.Ed.2d 45 (1997); Hisquierdo v. Hisquierdo, 439 U.S. 572,                                                                            
581, 99 S. Ct. 802, 59 L.Ed.2d 1 (1979)).13 

     As the final step of preemption analysis, the Emard court noted that                                                                             
Congress has not completely occupied this field such that state laws are                                                                              
preempted.  Emard, 153 F.3d at 960-61 (citing Boggs, 117 S. Ct. at 1760).                                                                             
"Congress pre-empted state laws relating to plans, rather than simply to                                                                              
benefits."  Coyne, 482 U.S. at 11. 

Because California's law does not regulate ERISA plans (other than                                                                                    
operating to redesignate the beneficiary), the Emard court found that ERISA                                                                           
did not bar application of state law.  Emard , 153 F.3d at 961.  The Ninth                                                                            
Circuit believed that "Congress did not preempt state rules" with regard to                                                                           
alternate distribution of insurance proceeds:  "State community property                                                                              
laws 'implement policies and values lying within the traditional domain of                                                                            
the states.'"  Emard, 153 F.3d at 961 (citing Boggs, 117 S. Ct. at 1760).                                                                             
Courts therefore require that State family and family-property law must do "major
damage" to "clear and  substantial" federal interests before the Supremacy Clause 
will demand that state law be overridden.                                                                                                                              
Hisquierdo, 439 U.S. at 581.  ERISA does not preempt application of state                                                                             
laws that merely redesignate the beneficiary under an ERISA plan, because                                                                             
such laws do not do "major damage" to a "clear and substantial" federal                                                                               
interest.  Emard, 153 F.3d at 961.

     While we are not bound by the Ninth Circuit's interpretation of ERISA                                                                            
preemption,14 we find it persuasive and adopt its analysis in Emard.  Emard                                                                           
is consistent with the United States Supreme Court's current interpretation                                                                           
of ERISA preemption.  The Supreme Court's recent cases indicate that ERISA                                                                            
preemption has been much too broadly construed in the past and must be                                                                                
narrowed; Emard follows that directive in a principled, logical manner.                                                                               
Although Emard addresses only life insurance, the same principle should                                                                               
apply to pension fund benefits. 

We therefore hold that, under the circumstances of the case before us,                                                                                
ERISA does not preempt RCW 11.07.010, a statute similar to the one at issue                                                                           
in Emard.15  Consequently, under the plain language of the statute, the                                                                               
children are entitled to the proceeds of their father's pension fund, which                                                                           
have not yet been distributed.  They are also entitled to the insurance                                                                               

But whether they can look to the insurer for this amount depends on whether                                                                           
the children demanded the insurance proceeds in compliance with the                                                                                   
requirements of RCW  If they did not comply with RCW 11.07.010,                                                                          
the children will not be able to recover the insurance proceeds from the                                                                              
insurer, but instead will have to look solely to Donna for the funds.17  RCW                                                                          

     We reverse summary judgment granted to Donna and remand for entry of                                                                             
summary judgment for the children with regard to the pension plan and life                                                                            
insurance proceeds.18                                                                                                                                 
                                 Hunt, J.                                                                                                             
We concur:                                                                                                                                            
Bridgewater, J.                                                                                                                                       
             Armstrong, J.  
1 For ease of reference we refer to the parties by their first names; we                                                                              
mean no disrespect. 

2 Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq.  

3 Defined by 26 U.S.C. sec.401(k). 

4 Defined by 26 U.S.C. sec.408(a). 

5 RCW 11.04.015 provides that:

The net estate of a person dying intestate . . . shall be distributed as                                                                              
. . .                                                                                                                                                 
(2) Shares of others than surviving spouse.  The share of the net estate                                                                              
not distributable to the surviving spouse, or the entire net estate if                                                                                
there is no surviving spouse, shall descend and be distributed as follows:                                                                            
To the issue of the intestate; if they are all in the same degree of                                                                                  
kinship to the estate, they shall take equally, or if of unequal degree,                                                                              
then those of more remote degree shall take by representation.

6 The trial court apparently disregarded an affidavit from the children's                                                                             
mother, David's first wife, attesting to Donna's statements that she knew                                                                             
David had intended to remove her as beneficiary of his life insurance                                                                                 
policy and would be angry if he knew Donna had received the proceeds.

7 Because we hold that RCW 11.07.010 is not preempted by ERISA, we need not                                                                           
address the children's alternative assertion that Donna "waived" her right                                                                            
to the pension proceeds via the dissolution decree.  

8 "If you have not designated a beneficiary on the appropriate form, you                                                                              
have an invalid beneficiary designation, or your beneficiary is no longer                                                                             
living, benefits will be paid in the following sequence: 

1.  To your surviving spouse. 

2.  If there is no surviving spouse, to your children in equal shares."

9 "There shall be a provision that any sum becoming due by reason of the                                                                              
death of the individual insured shall be payable to the beneficiary                                                                                   
designated by such individual, subject to the provisions of the policy in                                                                             
the event there is no designated beneficiary. . ."  RCW 48.24.160.                                                                                    
10 29 U.S.C. 1144(a) provides, in relevant part, that: 

Except as provided in subsection (b) of this section, the provisions of                                                                               
this subchapter and subchapter III of this chapter shall supersede any and                                                                            
all State laws insofar as they may now or hereafter relate to any employee                                                                            
benefit plan described in section 1003(a) of this title and not exempt                                                                                
under section 1003(b) of this title.

11 Earlier, the Supreme Court had interpreted ERISA's preemption statute as                                                                           
creating a "deliberately expansive" preemption of state law.  Pilot Life                                                                              
Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S. Ct. 1549, 95 L.Ed.2d 39                                                                                  
(1987).  In Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S. Ct.                                                                            
478, 112 L.Ed.2d 474 (1990), the Court ruled that "a state law may 'relate                                                                            
to' a benefit plan, and thereby be pre-empted, even if the law is not                                                                                 
specifically designed to affect such plans, or the effect is only                                                                                     
indirect."  The Washington Supreme Court's traditional analysis of ERISA                                                                              
"preemption" is illustrated by Cutler, 124 Wn.2d at 763, in which it relied                                                                           
primarily on Ingersoll-Rand's holding that employees' state law claims were                                                                           
preempted when they directly conflicted with an ERISA cause of action or                                                                              
rested upon the existence of an ERISA plan.  Ingersoll-Rand, 498 U.S. at                                                                              
140.  As recently as 1996, the Washington Supreme Court indicated that                                                                                
ERISA "preempts any state law touching on ERISA benefit plans, even if                                                                                
those laws merely supplemented the Act and were consistent in purpose."                                                                               
Stevedoring Svcs. of America, Inc. v. Eggert, 129 Wn.2d 17, 26, 914 P.2d                                                                              
737 (1996). 

12 The Emard court did not address the situation where a competing claim was                                                                          
made for insurance proceeds after the proceeds had already been distributed                                                                           
to the named beneficiary.  It is an issue in this case, but RCW 11.07.010                                                                             
provides resolution.  

13 Furthermore, as other courts have noted, "{b}lindly paying the proceeds                                                                            
as specified in the {plan documents} would be inconsistent with the                                                                                   
statutory preemption exception that recognizes the validity of domestic                                                                               
relations orders affecting beneficiary designations."  See, e.g. Carland v.                                                                           
Metropolitan Life Ins. Co., 935 F.2d 1114, 1121 (10th Cir. 1991).                                                                                     
Similarly, contrary to Donna's assertions here, holding that RCW 11.07.010                                                                            
is not preempted will not complicate the administration of ERISA-covered                                                                              
plans in Washington.  "ERISA already requires an administrator of a pension                                                                           
plan to investigate the marital history of a participant and determine                                                                                
whether a domestic relations order exists that could affect the                                                                                       
distribution of benefits."  Carland, 935 F.2d at 1122.  Compliance with RCW                                                                           
11.07.010 requires no more. 

14 Even where the matter is one of federal law, Washington courts are not                                                                             
bound by the interpretations of non-constitutional federal law rendererd by                                                                           
inferior courts -- even the Ninth Circuit.  State v. Barefield, 110 Wn.2d                                                                             
728, 732 n.2, 756 P.2d 731 (1988); Amalgamated Clothing Workers of Am. v.                                                                             
Richman Bros., 348 U.S. 511, 75 S. Ct. 452, 99 L.Ed. 600 (1955). 

15 Although statutes similar to RCW 11.07.010 have been found to be                                                                                   
preempted, all of those cases arose before the Supreme Court announced its                                                                            
new reasoning with regard to ERISA preemption.  See, e.g., Metropolitan                                                                               
Life Ins. Co. v. Pressley, 82 F.3d 126 (6th Cir. 1996).

16 The plan administrator must have actual knowledge of dissolution and/or                                                                            
conflicting claims for proceeds of a given policy before being liable for                                                                             
the decision to make payment to the named beneficiary.  RCW 11.07.010(3).  

17 As Donna notes, seemingly the most relevant Washington case is Aetna Life                                                                          
Ins. Co. v. Wadsworth, 102 Wn.2d 652, 689 P.2d 46 (1984).  Wadsworth                                                                                  
involved a remarried man dying while his ex-wife was still designated as                                                                              
beneficiary of his life insurance policy.  The woman to whom he was married                                                                           
at the time of his death opposed his ex-wife's collecting under the policy.                                                                           
Without mentioning ERISA, the court ruled:

In general, the beneficiary named in the policy will be entitled to the                                                                               
proceeds to the extent that the present spouse's community property rights                                                                            
are not invaded.  We believe this general rule should not apply, however,                                                                             
where the dissolution decree clearly indicates an intent to divest the                                                                                
former spouse of his or her expectancy as beneficiary, so long as that                                                                                
intention is acted upon within a reasonable time after dissolution by                                                                                 
formal execution of the change of beneficiary.  If the intention is not                                                                               
acted upon within a reasonable time {conclusive presumption after one year                                                                            
after date of dissolution}, the owner should be deemed to have decided to                                                                             
retain the named beneficiary as the one entitled to the proceeds.                                                                                     
Wadsworth, 102 Wn.2d at 662.  The court added, "if the insured spouse dies                                                                            
within a reasonable time period without formally executing the previously                                                                             
stated intention to change the beneficiary, the former spouse will not be                                                                             
entitled to the proceeds."  Wadsworth, 102 Wn.2d at 663.

     Because the Egelhoff divorce decree did not mention the life insurance                                                                           
policy, Donna could arguably be entitled to the insurance proceeds under                                                                              
Wadsworth.  But whether Wadsworth is still good law is highly questionable                                                                            
on two grounds:  (1) The opinion does not mention ERISA (and seems to have                                                                            
concerned an ERISA-covered policy, given that it was "paid in full on a                                                                               
monthly basis as a benefit of employment by the Boeing Company." 

Wadsworth, 102 Wn.2d at 654); and (2) RCW 11.07.010 was not in existence at                                                                           
the time of the Wadsworth decision (RCW 11.07.010 was originally enacted by                                                                           
Laws of 1993, ch. 236, sec. 1).  As a result, we look elsewhere, namely the                                                                           
Ninth Circuit's opinion in Emard, for a contemporary analysis.  

18 Donna is clearly liable to the children for the insurance proceeds.  But                                                                           
a determination, under RCW 11.07.010, of whether the children can look to                                                                             
the insurer for the life insurance benefits erroneously paid to Donna, or                                                                             
whether they can look only to Donna herself for reimbursement of the funds                                                                            
she wrongfully received, cannot appropriately be made as part of the                                                                                  
present action.  Because the insurer, Aetna, is not a party to this case,                                                                             
the children will have to bring a separate action against Aetna should they                                                                           
seek to recover from it the proceeds wrongly paid to Donna.