Baker, J. Grosse, C.j., and Coleman, J., concur.
In this case we are asked to review competing claims of a widow and a former spouse to the retirement annuity plan benefits of the deceased former husband.
Factual and Procedural Background
Frederic Harris and Wanda Harris were married from May 27, 1967, to July 15, 1971. They had one son. During their marriage, Frederic named Wanda as primary beneficiary, and their son as contingent beneficiary, of retirement annuity proceeds payable upon Frederic's death. Frederic's retirement annuity plan was offered through his employer, the University of Washington, and provided by the Teacher's Insurance and Annuity Association of America (TIAA). Frederic and Wanda's divorce decree awarded the interest in the retirement annuity plan to Frederic. TIAA's records
showed that Wanda remained the designated primary beneficiary at the time of Frederic's death.
Frederic was remarried in 1971 to Barbara Harris, and remained married to her until his death in 1988. During their marriage, Frederic executed a will naming Barbara as executrix and leaving her all of his property. Four months prior to Frederic's death, Frederic and Barbara entered into a 3-pronged community property agreement. The agreement provided:
Section 1. All property of whatsoever nature or description, whether real, personal or mixed, and wheresoever situated, now owned or hereafter acquired by us or either of us, whether separate or community property, shall be construed and is hereby declared to be community property.
Section 2. Upon the death of either of us, title to all community property, as herein defined, shall immediately vest in fee simple in the survivor of us.
Barbara alleges that a few days after the entry of the divorce decree in Frederic's prior marriage, Frederic submitted a form to the University of Washington changing the beneficiary of his TIAA plan from Wanda to Barbara. TIAA has no record of this. Barbara supports this allegation with her own affidavit and with handwritten notes, attached to her affidavit, purportedly written by Frederic.
Barbara Harris filed this action on September 8, 1988, against Wanda Harris, TIAA, and the University of Washington, seeking a declaration that she is the beneficiary of Frederic's TIAA retirement plan and seeking an award of all benefits thereunder. Alternatively, she sought damages for negligence against TIAA and the University of Washington, who she alleges lost the change of beneficiary form that Frederic allegedly filled out in her favor. The negligence claim is not at issue on this appeal.
Barbara moved for summary judgment based on the community property agreement and her own affidavit. Wanda filed a cross motion for summary judgment, claiming that as named beneficiary of the TIAA contract, she is entitled to all of the proceeds except one-half of the
amount attributable to contributions made during the marriage of Frederic and Barbara. Wanda also filed a motion to strike Barbara's affidavit, claiming the affidavit was ...