concurring in result.
I agree with the majority's conclusion that Charles's employer-paid post-retirement health insurance premiums are not a marital asset subject to division. I write separately, however, because I reach that conclusion by a different route.
To reiterate, Indiana Code Section 31-9-2-98(b) defines "property" for purposes of dissolution proceedings as follows:
[Am the assets of either party or both parties, including:
(1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage; and
(8) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable after the dissolution of marriage.
Initially, I note that the Internal Revenue Code differentiates between "retirement benefits" (such as Charles's monthly stipend) and "medical benefits" (such as the health insurance premiums). See 26 U.S.C. § 41l1(a)(9) (stating that a "normal retirement benefit shall be determined without regard to ... medical benefits"); see also 26 U.S.C. § 401(h) (stating that "a pension or annuity plan may provide for the payment of benefits for sickness, accident, hospitalization, and medical expenses of retired employees, their spouses and their dependents, but only if ... such benefits are subordinate to the retirement benefits provided by the plan"). "Retirement benefits" may qualify as vested un*1013der Section 411, but "medical benefits" may not.
This raises the question of whether the Indiana General Assembly intended to define "retirement benefits" and "vested" in terms of the Internal Revenue Code. As it is currently written, Indiana Code Section 31-9-2-98(b) does not answer this question. In fact, its inartful drafting raises additional questions that have no easy answers. If the legislature did intend to define "retirement benefits" and "vested" in terms of the Internal Revenue Code, then the health insurance premiums at issue would not be considered "retirement benefits" and therefore would not be considered marital property subject to division. If the opposite is true, then we are left with the case law on which the majority relies as guidance for determining whether the premiums are "retirement benefits" that are "vested" under Indiana law. In short, I believe that Indiana Code Section 31-9-2-98(b) is ambiguous and that the legislature should address this ambiguity.6
What does seem clear, however, is the legislature's overarching intent that only durable and definable "benefits" be considered marital property subject to division. The health insurance premiums paid by Navistar are a purely contractual right and are contingent upon both Navistar's and Charles's viability.7 As such, the premiums are more akin to future income, and I think that they would be more appropriately treated by the trial court in the same manner as future earnings ability. It is well settled that "a trial court may not divide the future earnings of a party in anticipation that they will be earned." Shannon v. Shannon, 847 N.E.2d 203, 205 (Ind.Ct.App.2006), trans. denied (2007).8 Based on the foregoing, I concur in result with the majority's affirmance of the trial court's dissolution order.
. If the legislature did intend to define "retirement benefits" and "vested" in terms of the Internal Revenue Code, then one might argue that Indiana Code Section 31-9-2-98(b)(2) should be worded as follows: "the right to receive pension or retirement benefits that are not forfeited upon termination of employment and that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage[.]" (Emphasis added.)
. Should Navistar become insolvent, Charles's defined benefit pension would be protected under the federal Employee Retirement Income Security Act ("ERISA"). The health insurance premiums would not be protected, however.
. It is also worth noting that the premiums are not subject to division by a qualified domestic relations order ("QDRO").