concurring in result.
I respectfully disagree with the majority’s analysis of the issues. Determining that Jeanne Hicks is not a creditor of Murwyn Hicks’s estate, i. e., that her claim was for maintenance, requires a close examination of the property distributed through the dissolution decree, in relation to the amount of property actually available for distribution. As the majority concedes (at 719) the record here is unclear as to whether the decree disposed of more property than was owned by the Hickses at the time of the dissolution. There is, in fact, nothing else in the record to justify the majority’s conclusion that Jeanne and Murwyn intended the “alimony judgment” to represent an award of maintenance, rather than the prolonged distribution of existing marital property.1 The “alimony judgment” paragraph is located in the “Provisions Affecting Division of Property” section of the agreement executed by the parties. Additionally, paragraph 12 of this section expresses the parties’ intention that the agreement dispose of “all property acquired by the parties prior to and during their marriage .... ” Finally, the term “maintenance” as used in the dissolution decree clearly refers to child support. Absent a definitive record on the amount of marital property owned at the time of dissolution, the evidence supports one conclusion as well as another and the majority’s holding seems speculative.
*723Jeanne’s only claim to the profit-sharing trust is as a general creditor of Murwyn’s estate. Any specific interest she could have had as a result of the dissolution was relinquished in the property settlement agreement incorporated into the dissolution decree. The dispositive issue, then, is whether the profit-sharing plan benefits are assets of Murwyn’s probate estate.2
The profit-sharing plan established by Associates in Anesthesiology for its employees provides for three types of benefits: retirement benefits, termination and disability benefits, and death benefits. In addition, employees have an annual option to accept a portion of the amount credited to their account as “additional compensation.” Payment of all benefits is, of course, governed by the terms of the profit-sharing plan and the trust indenture executed incident thereto.
Death benefits are paid only if an employee dies before retirement or the termination of his employment. Payment is made “in a lump sum to the primary or contingent beneficiary designated by the deceased [employee].” The plan further provides that if the primary and contingent beneficiaries predecease the employee, the death benefits are paid to the employee’s estate.
It is uncontested that Murwyn timely designated his primary beneficiary. This beneficiary, Mrs. Fielman, was living when Murwyn died. By the express terms of the plan the death benefits passed directly to Mrs. Fielman rather than Murwyn’s probate estate. The benefits were therefore never available to Jeanne as a general creditor of the estate.3 See In re Lauro’s Estate (Pa.1961), 79 Montg. County L.Rep. 51, 27 Pa.D. & C.2d 579; Cf. I.C. 27-1-12-29 (Burns Code Ed.1975) (group life insurance proceeds); I.C. 27-1-14-16 (Burns Code Ed. 1975) (fraternal beneficiary association benefits); I.C. 27-8-3-23 (Burns Code Ed.1975) (Mutual life and accident insurance benefits). For this reason I concur in the result reached by the majority.
. I agree, however, with the majority’s general analysis of I.C. 31-1-11.5-10(a), concerning the ability of parties to agree “in writing to provisions for the maintenance of either of them ...." At 720-721.
. It is essential to distinguish between the probate estate and the taxable estate. The latter is much more inclusive due to the scope of federal and state statutes governing the transfer of property by a decedent. See 26 U.S.C.A. § 2001 et seq. (West 1979 & Supp.1981); I.C. 6-4.1-1-1 et seq. (Burns Code Ed.1978 & Supp. 1980). We are only concerned here with the probate estate.
. I also note that Jeanne failed to provide a record to substantiate her claim of fraud. The record merely shows that Murwyn named Mrs. Fielman as the death beneficiary after Jeanne relinquished all rights to the profit-sharing plan. As noted above, the death benefits vested in Mrs. Fielman immediately upon Murwyn’s death pursuant to the terms of the plan.