concurring:
Raymond Evanek named his first wife, Charlotte, as the beneficiary of a life insurance policy. When he divorced Charlotte, she released Raymond and his estate from “... any and all other claims, liabilities, obligations, dower and other rights to which she may be entitled under the laws ... of Pennsylvania ... ”. Raymond then married Marian. He did not, however, change his life insurance policy to reflect that Marian was now to be the beneficiary rather than his first wife, Charlotte. As a result, after Raymond died, both Charlotte and Marian claimed the proceeds of the policy.
The majority opinion holds that Charlotte should prevail in this interpleader action and therefore affirms the decision of the district court. Both the district court and the majority rely upon Equitable Life Assurance Society v. Stitzel, 299 Pa.Super. 199, 445 A.2d 523 (1982), which in a similar *323situation, held in favor of recovery by the first wife. Stitzel, as the decision of an intermediate state tribunal, is not automatically controlling upon a federal court sitting in diversity. It is, however, presumptive evidence of the course the state’s highest court might take in deciding the issue and, as such, should not be disregarded unless other persuasive data suggest the state’s highest court would decide otherwise. See National Surety Corp. v. Midland Bank, 551 F.2d 21, 30 (3d Cir.1977). Thus, although I am not bound to follow Stitzel, I cannot ignore its authority in the absence of some countervailing state law.
I write separately because although I recognize that this matter reaches us through our diversity jurisdiction and that therefore the law of Pennsylvania controls, I am disquieted by a compelled result which disregards both the testator’s presumed intent and common sense. Stitzel requires that Charlotte, Evanek’s first wife, be deemed the continuing beneficiary of her former husband’s insurance, despite their divorce, Raymond’s remarriage, and the exceedingly broad terms of the settlement agreement between Charlotte and Raymond. Under Stitzel, a settlement agreement must explicitly refer to life insurance in order to divest a former spouse of an otherwise retained beneficial interest in a policy of insurance. See 299 Pa.Super. at 203, 445 A.2d at 525.
The Stitzel court justified its holding that a waiver of a former spouse’s beneficial interest must be an express waiver by reasoning that the naming of a beneficiary could not be deemed a “conveyance” within the meaning of the Pennsylvania Decedents, Estates and Fiduciaries Code, 20 Pa. Cons.Stat.Ann. § 6108(a) (Purdon 1975). Instead, in accordance with the earlier case of In re Estate of Henderson, 395 Pa. 215, 149 A.2d 892 (1959), the Stitzel court concluded that the designation of a revocable beneficiary was neither a testamentary nor an inter vivos conveyance. Rather, it created a mere expectancy in the beneficiary. That section of the Pennsylvania Code stating that upon the divorce of a conveyor, all provisions in a revocable conveyance which are to take effect upon the conveyor’s death in favor of a former spouse become ineffective for all purposes, see 20 Pa.Cons. Stat.Ann. § 6111.1 (Purdon Supp. 1984-85), was thus deemed inapplicable to contracts of insurance. In the absence of some express waiver in the settlement agreement, no statutory revocation of a former spouse’s beneficial interest would be deemed to occur.
Had the present controversy been tried in the Pennsylvania courts, it is clear that Stitzel would control. Indeed, any Pennsylvania trial court would be bound to decide this case in accordance with Stitzel, even if it believed, as I do, that Stitzel was wrongly decided. I cannot therefore freely reach a contrary conclusion. I note, however, that to hold that Evanek’s insurance should now benefit his former wife, rather than his present widow seems unjust and illogical.
The Stitzel court undoubtedly thought that some affirmative act was necessary to divest a named beneficiary of rights against a third-party insurer. If the designation of a life insurance beneficiary can be deemed neither a testamentary nor an inter vivos conveyance but rather is classified as a mere “expectancy”, I find it difficult to understand why such an expectancy should not be included within the “other rights” which Charlotte released to Raymond in their settlement agreement. Certainly Charlotte was not required to state or identify explicitly any of the other “claims, liabilities, obligations, etc.” in order to give effect to her release. And if an “expectancy,” i.e., a right to the proceeds of Raymond’s life insurance policy when he dies, is not an “other right”, then what is it?
The stringency of the explicit waiver requirement, limited to only a life insurance beneficiary, stands in sharp contrast to the treatment given the other rights, interests, liabilities, obligations, and claims which *324Charlotte released and to which the Pennsylvania courts give effect. To my mind, the contingent contract right which the named life insurance beneficiary may ultimately assert seems no different from any other executory interest, including an executory interest in a trust to which Judge Becker alludes in seeking to support a construction of § 6111.1 as not applying to life insurance beneficiaries.
If, of course, Judge Becker and the Stitzel court are correct in holding that § 6111.1 does not include a life insurance beneficiary within the meaning of the term “conveyance”, and if the Pennsylvania Supreme Court is persuaded by that reasoning, then I suggest that this is a serious flaw in Pennsylvania’s legislative scheme to which the Pennsylvania legislature should address itself forthwith. I would imagine that of the “conveyances” containing revocable terms where the conveyance is to take effect after the conveyor’s death, none is more familiar, common, or numerous than life insurance policies with named beneficiaries.
Thus, either a construction which includes such beneficiaries should be given to § 6111.1 or alternatively the legislature, by a stroke of the pen, could include within § 6111.l’s terms, life insurance contracts designating life insurance beneficiaries. Such a construction or revision would unquestionably accord with the general understanding — and I suggest with Raymond’s particular understanding — that a spouse’s broad release of “all claims, liabilities, dower and other rights” would divest the signing spouse of any beneficial interest in a contract of insurance.
Although I currently defer to the holding of Stitzel for the reasons heretofore expressed, I am further troubled because in Cipriani v. Sun Life Insurance Co., 757 F.2d 78 (3d Cir.1985), we have recently reiterated that under Pennsylvania law, effect will be given to an insured’s intention to change the beneficiary where, even in the absence of a duly recorded change of beneficiary, the insured has made a reasonable effort under the circumstances to execute such a change. In Cipriani, the insured’s former wife, who was the named beneficiary of her former husband’s life insurance policy, brought suit to recover policy proceeds which the insurer had paid to the insured’s mother. We remanded to the district court for consideration of additional evidence which would bear on findings of the insured’s intent.
It seems unreasonable to me that we should acknowledge an insured’s intent in Cipriani and ignore his demonstrated intent here. In both instances the controversy arises over a failure by the insured to take certain steps with respect to his life insurance after his divorce from his wife. In both cases, the beneficiary, whom one would obviously expect to be benefited, sought the proceeds: in Cipriani, the insured’s mother, and in the present case, Raymond’s widow.
Here it is plain to me that when Charlotte signed the comprehensive settlement agreement incident to her divorce, Raymond justifiably could have felt that she, Charlotte, no longer would share in any of his assets. By our decision today, we defeat that intent and that expectation. In my opinion, this is bad policy, stemming from an erroneous interpretation, of Pennsylvania statutes. It creates bad law. Nonetheless, I am obliged, if I am to give deference to Pennsylvania law, to concur with the majority. I do so, but I do so reluctantly.