concurring in part and dissenting in part.
¶ 27 I concur in much of the majority opinion. I agree that A.R.S. § 38-850 prohibits an employee from assigning death benefits and that Raul’s purported assignment of death benefits to Guillermina, therefore was invalid. I also agree that Guillermina is not a surviving spouse as defined by A.R.S. § 38-846. I disagree, however, with the majority’s conclusion that no cognizable community interest exists in the death benefits. Because the majority’s holding deprives non-employee spouses of their right to receive an equitable share of all community property that existed at the time of dissolution, I dissent.
¶ 28 As the majority states, during their marriage, Raul and GuiUermina purchased the retirement plan in question, which provided both retirement and death benefits, using entirely community funds and labor. The question, then, is whether the provision of Raul’s retirement plan that permitted his subsequent spouse or qualifying children to receive death benefits constituted an asset, purchased with community funds, that had some value at the time of dissolution. If it did, Guillermina was entitled to a distribution of property that took into account the value of the asset.
¶ 29 The parties failed to submit evidence sufficient to permit the trial court to determine the value of Raul’s right to provide death benefits if he left qualifying children or a surviving spouse. Despite that failure, however, it seems obvious that the community paid more for a retirement plan that included death benefits, payable to a surviving spouse or to qualifying children, than it would have paid for a plan with retirement benefits only. Moreover, the potential recovery by a new spouse if the employee spouse remarries, or to qualifying children if no remarriage occurs, certainly has value to the employee spouse. If death benefits were not available, the employee spouse would have to find other means to provide for a new spouse or qualifying children in the event of his death, whether by purchasing life insurance or by acquiring some other financial protection.
¶30 We must treat the entire plan as community property absent some indication that the legislature intended to deprive a former spouse of an interest in this community asset. See, e.g., Koelsch v. Koelsch, 148 Ariz. 176, 180, 713 P.2d 1234, 1238 (1986). I see nothing in the statutes governing this retirement plan that clearly indicates the legislature intended to deprive Guillermina of her interest in this community asset. I therefore would conclude that, to ensure an equitable distribution of community assets upon dissolution, the trial court should endeavor to determine the present value of the entire retirement plan, including the present value of the right to assure payment of death benefits to a surviving spouse or qualifying children.
¶ 31 The majority, while recognizing that a community property interest can be contingent on events that occur after dissolution, see Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977), declines to recognize Guillermina’s community interest because “the evaluation of such an interest would involve far too much speculation to meet any reasonable criteria for a sound judicial determination.” Op. at ¶23. But recognizing that an asset is difficult to value says nothing about its character as community or separate property; it simply tells the parties that they must present adequate evidence to the trial court to permit a reasonable valuation.
¶32 We have previously considered the proper treatment of contingent benefits at dissolution. Although retirement plans inevitably present valuation difficulties, we held in Koelsch, 148 Ariz. at 181, 713 P.2d at 1239, that retirement benefits are community property to the extent they are paid for with community funds or earned with community efforts. We reached that conclusion despite the charge by some critics that “the extensive actuarial calculations that are necessary to produce a present value lump sum are expensive, speculative, and always inaccurate.” Id. at 184, 713 P.2d at 1242. Because *435it is impossible to divine the future, some risk always exists that life expectancies and/or estimates of present value may prove wrong, but we have not previously permitted that risk to justify depriving one spouse of property earned by the marital community.
¶33 In Koelsch, we did not reach the issue of how to characterize or value death benefits, see id. at 182 n. 5, 713 P.2d at 1240 n. 5, but now squarely confront it. Although the presence of death benefits may complicate valuation of a plan, the asset is nevertheless community property and must be taken into account at dissolution. “[Wjhere the community interest in the pension is fully vested and matured, the trial court should value the retirement benefits as a whole, including the value of the survivor’s benefit provision of the retirement plan, in order to fully and fairly apportion each party’s share of the retirement benefits.” Irwin v. Irwin, 121 N.M. 266, 910 P.2d 342, 347 (Ct.App. 1995) (emphasis added).
¶34 Of course valuation must take into account the contingent nature of death benefits and the terms of a particular retirement plan. Cf. Johnson v. Johnson, 131 Ariz. 38, 42 n. 9, 638 P.2d 705, 709 n. 9 (1981) (stating the present value of nonvested pension benefits “should be discounted to reflect the possibility that rights will not vest”). Depending upon circumstances and the terms of a particular plan, the value of this asset will vary. The trial court, as it always does, should consider relevant evidence to calculate that value. For instance, if an employee spouse has no qualifying children and no plans to re-marry, the value of the right to provide death benefits may be minimal. In contrast, if an employee spouse has qualifying children or testifies he plans to re-marry immediately upon dissolution, and the spouse qualifies immediately to receive death benefits, the value may be higher. The court’s decision as to the valuation of this community asset will necessarily rest on the quantity and quality of proof offered by the parties.
¶ 35 I would leave to the parties and the trial court the task of placing a value on the retirement plan, including its death benefits. In Koelsch, we considered the same plan at issue here and stated that when “a benefit is matured and payable, ... the method of division must be based on a determination of present value.” 148 Ariz. at 183, 713 P.2d at 1241 (1986) (emphasis added). That value is fixed as of the date of dissolution. In Koelsch, we also expressed a preference for lump sum distributions of community assets. Id. Under this method, the court places a present value on the retirement proceeds. The non-employee spouse is then awarded other community property to offset his or her interest in the plan. See id. This approach, of course, presupposes sufficient offsetting community property. If sufficient property is not available, the court may impose a lien on one spouse’s separate property, if available, to secure payment of the other’s share. See A.R.S. § 25-318.C. (West 1991). The court may also choose to distribute under the “reserved jurisdiction method” described in Koelsch. 148 Ariz. at 183, 713 P.2d at 1241; see also Johnson v. Johnson, 131 Ariz. 38, 41, 638 P.2d 705, 708 (1981). As is apparent, however, no single method is perfect; each carries with it some degree of risk.
¶ 36 The problem for Guillermina is that she provided no evidence that would have permitted the trial court to place a value on this asset. Although the monthly retirement benefit in this case was “matured and payable” at the time of dissolution, the record reveals no attempt to present evidence that would permit valuation of any other part of the plan. The record likewise lacks evidence from which we can determine whether the community possessed sufficient assets to offset the value of the death benefits. Rather than, make those determinations, and acting on the basis of the information supplied by the parties, the trial court ordered a percentage division of Raul’s monthly benefits between the two spouses, but did not expressly reserve jurisdiction in this regard. Neither party appealed that decision. See Peste v. Peste, 1 Wash.App. 19, 459 P.2d 70, 73 (1969) (prohibiting collateral attack on property settlement where there was a large disparity between the property awarded to each party, and where both parties were aware of all material facts).
*436¶ 37 , The failure of either party to take an appeal leaves us with an inequity we cannot now correct. At dissolution, the trial court granted Guillermina fifty percent of Raul’s monthly retirement benefits, which she received, and ordered Raul to name her as “irrevocable beneficiary of 50 percent of any death benefits payable by reason of his former employment with Santa Cruz County.” The only death benefits for which he could name a beneficiary were refund benefits, and Raul complied with the court’s order. When Raul remarried he had no ability to designate the beneficiary of the surviving spouse’s payments.
¶38 Therefore, the parties and the trial court disposed of a community asset in a specific, albeit legally ineffective, way. Rather than take an appeal from that disposition, Guillermina later attempted to obtain her interest from Ana in what is essentially a separate action to enforce a void assignment. I have no doubt that both Raul and Guiller-mina intended that she should recover a percentage of Raul’s death benefits. The record also suggests that they both knew or sus-’ peeted that the divorce decree was insufficient to give Guillermina a fifty percent interest in the death benefits, considering the later attempted assignment (which the court has found void) and its incorporation into a modified divorce decree (also ineffective against Ana). Under these circumstances, I see no basis for relief. I therefore agree that the trial court erred in granting the motion for summary judgment and that its judgment must be reversed.
Concurring: CHARLES E. JONES, Vice Chief Justice.