¶36 (dissenting) — The majority holds Washington’s meretricious relationship9 case law provides a means to distribute property after both partners die. I disagree. We should adhere to our precedent to hold this doctrine applies only when both partners are alive and seek to dissolve their relationship.
Sanders, J.¶37 The majority’s holding will also circumvent a decedent’s will if one partner in a meretricious relationship dies before another. Instead of respecting the decedent’s wishes, the surviving partner will be unjustly enriched by an interest in any “community property.” Because there is no actual marriage and the doctrine is not originally intended to include postdemise distribution, property should be distributed individually as per the rules of intestacy or by will.
¶38 The doctrine of meretricious relationships is a judicial one. William A. Reppy, Jr., Choice of Law Problems Arising When Unmarried Cohabitants Change Domicile, 55 SMU L. Rev. 273, 278 (2002). We developed it in the absence of a statutory means of “resolving the property distribution issues that arise when unmarried persons, who have lived in a marital-like relationship and acquire what would have been community property had they been married, separate.” Vasquez v. Hawthorne, 145 Wn.2d 103, 109, 33 P.3d 735 (2001) (Alexander, C.J., concurring) (citing In re Marriage of Lindsey, 101 Wn.2d 299, 678 P.2d 328 (1984)). *674Courts apply the doctrine by analogy to RCW 26.09.080, which requires equitable distribution of both separate and community property “[i]n a proceeding for dissolution of the marriage.” RCW 26.09.080; see Vasquez, 145 Wn.2d at 108-09 (Alexander, C.J., concurring) (citing Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995)). Before today, we have never applied the doctrine to justify a “post-demise distribution of property.” Vasquez, 145 Wn.2d at 114 (Sanders, J., concurring). Indeed, we held nearly the opposite when we said the doctrine does not apply when the meretricious relationship is terminated by the death of one of the partners. Peffley-Warner v. Bowen, 113 Wn.2d 243, 253, 778 P.2d 1022 (1989).
¶39 In Peffley-Warner the sole issue was “whether Washington affords a woman partner in a ‘meretricious’ relationship the same status as a wife under the laws of intestate succession with respect to the personal property of the deceased partner.” Id. at 245. We said no: “By common definition, a spouse is a marriage partner or a wife or husband. Marilyn E. Peffley-Warner and Sylvan F. Warner were neither. Theirs was a ‘meretricious’ relationship. Such a relationship is not a marriage. They were not spouses. They were not husband and wife. Therefore, because appellant is not a ‘spouse,’ she cannot receive a share of the estate of Sylvan F. Warner under the intestate succession laws of the state of Washington.” Id. at 252-53 (citation omitted).10
*675¶40 Our analysis in Peffley-Warner hinged on the fact Ms. Peffley-Warner was not actually Mr. Warner’s wife or widow. Similarly neither Cung Ho nor Thuy Nguyen Ho would have spouse or widow status if either had survived because they were not married. The majority rightly notes when married partners die simultaneously, each is presumed to have predeceased the other and intestacy statutes control, majority at 670; however, that would not be the case here since there was no marriage. Therefore, neither partner could receive a share of the estate “under the intestate succession laws of the state of Washington” since the couple was not married. Peffley-Warner, 113 Wn.2d at 253.
¶41 The majority does not limit its reasoning to the atypical simultaneous death situation, nor can I see a principled distinction to be made. In the more common situation, one partner in a meretricious relationship will die before the other and might choose to leave their property to someone other than his or her partner. But the majority’s broad reasoning would create a putative marriage where none truly exists. And instead of the deceased’s property being distributed as per his or her will, the surviving partner (along with his or her creditors) will be unjustly enriched with a portion of any assets deemed “community property.” This will deprive the rightful heirs of their full inheritance and negate the decedent’s wishes as memorialized in his or her will.
¶42 The meretricious relationship doctrine is available only when a couple living in a marital-like relationship seek to dissolve the relationship and judicially distribute the property. Irrespective of when the property is inventoried and divided, this relief is no more available when both die than when one dies.
¶43 I dissent.
Alexander, C.J., and J.M. Johnson, J., concur with Sanders, J.
Notwithstanding the majority’s invention of a new term (“committed intimate relationships,” majority at 657), the proper term is meretricious relationships because unlike an actual marriage, where there is a legal agreement between two people to be bound as husband and wife, a meretricious relationship is one “based on pretense.” Webster’s Third International Dictionary 1413 (2002). Our courts have used the term “meretricious” for over a century. See In re Estate of McLaughlin, 4 Wash. 570, 584, 30 P. 651 (1892) (“ ‘Mutual consent to enter into the relation of husband and wife was all that was essential. . . . But a marriage will not be presumed even where, for convenience, the parties hold themselves out as man and wife before third persons: Provided, Their cohabitation has the elements of a purely meretricious relation.’ ” (quoting 2 John D. Lawson, Rights, Remedies, and Practice § 711 (1889))).
While surveying Washington meretricious relationship law, Professor Reppy notes the numerous differences between meretricious relationships and lawful marriages:
The surviving cohabitant is not an heir able to make claims under the statutes of intestate succession, as could a lawful widow or widower. One cohabitant cannot recover for the wrongful death of the other. While a lawful spouse is not disqualified from receiving unemployment insurance compensation upon quitting her job to follow the other spouse to a new place of employment, a cohabitant who does the same is disqualified. A cohabitant cannot invoke the statute barring discrimination based on marital status. A divorced person receiving alimony does not forfeit the right to it by entering into a meretricious relationship in circumstances where by statute he or she would upon marrying the person with whom he or she begins living.
Reppy, supra, at 279-80 (footnotes omitted).