In this case a husband, without his wife’s knowledge or consent, took his wife’s property and gave it to his relatives as part of his estate plan. One might expect, in view of the relationship of trust and confidence between marriage partners, that this maneuver would not survive judicial scrutiny. But a majority of this court places its stamp of approval upon this breach of trust, and comes dangerously close to endorsing marital duplicity in financial matters. I dissent.
Frank Burch caused his lawyers to draw up a will and trust that, unbeknownst to his wife Marlene, distributed Marlene’s interests in community property and her federally guaranteed death benefit pension rights to Frank’s relatives. Frank sought to ensure the success of his plan by inserting a “no contest” or “in terrorem” clause in the trust instrument, intending that if Marlene challenged any provision of his will or trust, she would have to forfeit any benefits she received under the trust. Marlene sought to challenge the use of the no contest clause to work such a forfeiture.
Even though the Legislature has mandated that such no contest provisions be strictly construed, and the wife’s proposed challenge does not come strictly within the express terms of the forfeiture clause, the majority concludes that if the wife challenges the husband’s attempted disposition of her assets, the forfeiture clause will be triggered. The community property laws and the public policy of this state forbid one spouse to unilaterally dispose of the assets of the community. Nevertheless, the majority holds that a husband who seeks, without the knowledge or consent of his wife, to dispose of community assets and her separate assets may be shielded by the operation *275of a no contest clause in a trust or will. And, even though the wife’s pension rights are guaranteed under the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), which Congress intended to preempt conflicting state law, the majority holds that the husband’s unilateral diversion of his wife’s federally guaranteed pension rights does not offend federal law.
I do not agree. As I will explain, I would hold: (1) that, applying the statutory mandate to “strictly construe” no contest clauses, filing either the proposed state court or federal court complaints in this case would not amount to a “contest”; (2) that a no contest clause does not apply against the assertion of a spouse’s community interest in donative property; and (3) that the application of a no contest clause in a testamentary instrument under California law to divest a party of federally guaranteed pension rights is preempted under ERISA.
I. Background
Frank and Marlene Burch married in December 1985. Before the marriage, Frank had an unspecified ownership interest in Pacific Coast Ford, a corporation operating an automobile dealership; after he and Marlene were married, Frank apparently became the sole shareholder. During the marriage, Frank became a participant in the Pacific Coast Ford pension plan. In mid-1988, Frank retained an attorney to prepare a will and a testamentary trust known as the Frank Burch Family Trust (hereafter the trust).
The primary beneficiaries of the trust were Frank’s blood relatives. During the marriage, Frank transferred certain assets into the trust, including all the stock of Pacific Coast Ford and the entire interest in the pension plan created after Frank and Marlene were married. The trust included a subsidiary marital trust containing substantial assets to pass to Marlene, but the marital trust did not contain any interest in Pacific Coast Ford or in the pension plan.
The trust instrument had a no contest clause which provided, in pertinent part: “In the event that any beneficiary under this Trust. . . contests in any court the validity of this Trust or of Trustor’s last will, or seeks to obtain in any proceeding in any court an adjudication that this Trust or any of its provisions or that such Will or any of its provisions is void, or seeks otherwise to void, nullify or set aside this Trust or any of its provisions, then the right of that person to take any interest given to him or her by this Trust shall be determined as it would have been determined had such person predeceased the execution of this trust instrument without issue.” The will contained a similar clause. The trust instrument additionally recited that “the *276property subject to this Trust is [the trustor’s] separate property and that his interest therein . . . shall remain his separate’ property.”
Frank died in March 1989. Both Frank and Marlene had apparently brought substantial assets to the marriage. At the time of his death, the assets claimed to be Frank’s were valued at more than $7 million. Property worth approximately $800,000 passed directly to Marlene by joint tenancy. Outside the trust, Marlene also received life insurance proceeds of $200,000. Under the trust, Marlene received life insurance proceeds of $60,000, and a life estate in the income from a subsidiary marital trust of about $1.6 million. The balance of approximately $4.3 million, including most of the proceeds from the sale of the Pacific Coast Ford stock and the entire pension plan death benefit of $169,000, passed under the trust to Frank’s blood relatives.
In December 1990, Marlene filed two petitions under former Probate Code section 21305 seeking a determination whether certain ERISA and community property claims could be brought in federal and state court without invoking the no contest clause. She attached proposed complaints to each of her petitions.
The proposed federal court complaint named only the pension plan trustees as defendants. It alleged, among other things, that: (1) under 29 United States Code section 1055 and the terms of the pension plan, Marlene was entitled as a surviving spouse to receive 100 percent of the death benefits payable under the plan, but the plan trustees had refused to pay any benefits to her; (2) under California community property law, Marlene was entitled to 50 percent of all Frank’s income, and was therefore entitled to half of all benefits under the plan, which benefits had been unlawfully converted by the trustees; (3) the trustees had breached their fiduciary duties; and (4) the trustees had wrongfully failed to provide information, in violation of 29 United States Code section 1132(c).
The proposed state court complaint named as defendants the trustees of the trust, its beneficiaries, and its subsidiary trusts. It alleged, among other things, that Marlene never consented to the transfer of any of her interest in community property into the trust. The property transferred without her consent included 100 percent of the shares of stock in Pacific Coast Ford, the pension plan interest, and several life insurance policies purchased with community funds. The complaint set forth causes of action for, among other things, conversion, declaratory relief, and partition.
The Probate Code petitions were opposed by the trust and several of its beneficiaries. The trial court consolidated the petitions, and ruled that both *277proposed complaints would trigger the no contest clause. The trial court also ruled that ERISA did not preempt application of the no contest clause.
Marlene appealed, and the Court of Appeal affirmed the judgment of the trial court.1
II. No Contest Clauses
A. Strict Construction
The law regarding no contest clauses, also called “in terrorem” clauses, is not uniform in the United States. In a few states such clauses are unlawful, and are given no effect, apparently based on the view that “to inhibit a party from ascertaining his rights by appeal to the [courts]” is “against the fundamental principles of justice.” (Leavitt, Scope and Effectiveness of No-Contest Clauses in Last Wills and Testaments (1963) 15 Hastings L.J. 45, 55; see, e.g., Fla. Stat. § 732.517 (1992); Ind. Code § 29-1-6-2 (1992); cf. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1133 [270 Cal.Rptr. 1, 791 P.2d 587].) In most jurisdictions, however, the courts uphold no contest clauses, subject to an important restriction: no contest clauses apply only to beneficiaries who contest a will when they have no probable cause to do so. (See, e.g., U. Prob. Code § 3-905 (1983); Rest.2d Property, Donative Transfers (1983) § 9.1.)
California follows a minority rule: no contest clauses are effective, and there is no broad “probable cause” restriction as in most jurisdictions. Nevertheless, no contest clauses are not accorded expansive effect in California. They are not favored. “Public policy [is] as much concerned in upholding the right of a citizen to have his [or her] claim determined by law as it is to prevent contests of wills.” (Lobb v. Brown (1929) 208 Cal. 476, 490-491 [281 P. 1010].) Shortly after this court’s recognition that no contest clauses were not invalid as against public policy in Estate of Hite (1909) 155 Cal. 436 [101 P. 443], we emphasized that such clauses are “by way of forfeiture” and therefore are to be “strictly construed.” (Estate of Bergland (1919) 180 Cal. 629, 633 [182 P. 277, 5 A.L.R. 1363].) And in 1989, the Legislature codified the rule of strict construction for no contest clauses, thereby placing its stamp of approval on the narrow and cautious approach to such provisions taken by the judiciary. (Prob. Code, § 21304.)
Probate Code section 21304 provides: “In determining the intent of the transferor, a no contest clause shall be strictly construed.” (Italics added.)
*278The meaning of strict construction in the context of wills is succinctly summarized in a recent law review article: “Whereas ‘strict construction’ of wills emphasizes the written word and confínes interpretation to the ‘plain meaning’ of the words found within ‘the four comers of the instmment,’ a more ‘liberal construction’ emphasizes the testator’s intent as the primary determinant and thus allows extrinsic evidence of that intent.” (Collins & Skover, Paratexts (1992) 44 Stan.L.Rev. 509, 541-542, fn. 171, citing Atkinson, Handbook of the Law of Wills (1953) pp. 808-809.)
Our law is in accord. This court has held that strict construction means that “[n]o wider scope is to be given to [the testator’s] language than is plainly required.” (Estate of Bergland, supra, 180 Cal. at p. 635.) Only when an act “come[s] strictly within the express terms” of the no contest clause will a breach be declared. (Lobb v. Brown, supra, 208 Cal. at p. 492.)
B. Strict Construction Applied
As noted earlier, the no contest clause in the tmst instmment in this case provided: “In the event that any beneficiary under this Tmst. . . contests in any court the validity of this Tmst or of Tmstor’s last will, or seeks to obtain in any proceeding in any court an adjudication that this Tmst or any of its provisions or that such Will or any of its provisions is void, or seeks otherwise to void, nullity or set aside this Tmst or any of its provisions, then the right of that person to take any interest given to him or her by this Tmst shall be determined as it would have been determined had such person predeceased the execution of this tmst instmment without issue.”
It is undisputed that Marlene’s proposed federal and state court complaints do not seek to set aside the tmst in its entirety. The question, therefore, is whether either proposed complaint “seeks ... an adjudication that. . . any . . . provision [] [of the tmst instmment] is void, or seeks otherwise to void, nullify or set aside” any provision of the tmst instmment.
In accordance with Probate Code section 21304, this clause must be strictly construed. I turn first to the proposed state court complaint. It names as defendants the tmst and the subsidiary trusts, and all of their beneficiaries and trustees. The proposed state court complaint sets forth causes of action for declaratory relief to constme the tmst instmment, conversion, breach of fiduciary duty and partition, and seeks to impose a constructive tmst and to set aside fraudulent conveyances.
The proposed state court complaint does not seek an adjudication that any provision of the tmst instmment is void or should be set aside. It is therefore *279not, on its face, an attack on a provision in the trust instrument, and accordingly it cannot be a contest.
The proposed federal court complaint names only the pension plan trustees as defendants. It sets forth causes of action for breach of statutory obligations under ERISA, for conversion, for declaratory relief, and for breach of fiduciary duties. Like the proposed state court complaint, the proposed federal court complaint does not seek an adjudication that any provision of the trust instrument is void or should be set aside. It is also, on its face, not an attack on a provision in the trust instrument, and accordingly it cannot be a contest.
Nevertheless, the trustees contend that the proposed state and federal court complaints necessarily and in substance seek an adjudication that a provision of the trust instrument is void and should be set aside. The trustees focus on this provision of the instrument: “Trustor states that the property subject to this Trust is his separate property and that his interest therein, and in the proceeds and income therefrom, shall remain his separate property.” The trustees contend that Marlene’s proposed state court complaint challenges this clause because Marlene claims that the property subject to the trust is not Frank’s separate property, but community property instead. Similarly, the trustees contend that the proposed federal court complaint challenges this clause because Marlene claims that the ERISA death benefits that were made subject to the trust are under federal law payable to Marlene only.
The difficulty with the trustees’ argument is that Frank did not expressly identify in the trust instrument what property he considered to be his separate property. In this case, the trust instrument does not even purport to dispose of any interest in the property that Marlene claims is community property, or of any interest in property that Marlene claims is her separate property. Thus, Marlene does not seek to set aside the provision in the trust instrument quoted above, but merely to have a court construe that provision so as not to include property that is rightfully hers.
As the proposed state court complaint confirms, Marlene has strong claims that the Pacific Coast Ford stock and the life insurance proceeds were community property and not Frank’s separate property. Under Family Code section 760, all property acquired by a married person during the marriage is presumed to be community property. The record in this case shows that Frank and Marlene were married in December 1985; although Frank’s initial ownership interest in the dealership preceded the marriage, Frank became president and sole shareholder of Pacific Coast Ford in June 1986. Similarly, the record confirms that the life insurance policies at issue were purchased during the marriage.
*280Moreover, Marlene also has a strong claim that the ERISA death benefits were also not Frank’s separate property that he was entitled to dispose of as he wished. ERISA generally mandates that each pension plan must provide “a qualified preretirement survivor annuity” to the surviving spouses of plan participants. (29 U.S.C. § 1055(a)(2).) The plan, a copy of which is attached to Marlene’s proposed federal court complaint, appears to comply with the requirement for qualified preretirement survivor annuities. No party other than the surviving spouse has any claim under federal law to this death benefit.
The majority places great reliance on the language in the trust instrument that the trustee is to hold “the property listed on the attached ‘Schedule A’ and any other property added to the Trust Estate according to the terms of the Trust.” The majority seems to conclude that this language shows that Frank expressly intended the Pacific Coast Ford stock, the life insurance proceeds, and the pension plan assets to be added to the trust corpus. No schedule A was ever prepared, however. And the majority ignores the instrument’s requirement that property added to the trust estate must be added “according to the terms of the Trust.” But the terms of the trust specify that only Frank’s separate property is subject to disposition. There is nothing in the terms of the trust that indicates that Frank sought to dispose of Marlene’s property. Thus, reading the language of the trust strictly, community property and Marlene’s separate property could not have been added to the trust estate “according to the terms of the Trust.”
Because Frank did not expressly identify in the trust instrument what property he considered to be his separate property, we must give the phrase “separate property” its usual legal meaning. (See Estate of Carter (1956) 47 Cal.2d 200, 205 [302 P.2d 301].) Whatever ambiguity may be said to inhere in the phrase “separate property,” it plainly cannot be construed to mean “community property” or “separate property of another.” Nevertheless, that is exactly what the majority does in this case. The majority first purports to find ambiguity in this unambiguous phrase, and then turns to evidence extrinsic to the trust instrument itself—specifically, the declarations of two lawyers. One of the lawyers is also a trustee of the trust and is named as a defendant in Marlene’s proposed state court complaint, and the other is the attorney who drafted the trust instrument and could face potential liability in this matter. As I shall discuss, however, the majority’s approach to construction of no contest clauses is contrary to the statutory mandate.
Probate Code section 21304, as noted above, requires that no contest clauses be “strictly construed.” In determining the legislative intent of a statute, it is proper to look to comments by a law revision commission, *281which are persuasive evidence of the intent of the Legislature in enacting commission recommendations. (E.g., People v. Garfield (1985) 40 Cal.3d 192, 199 [219 Cal.Rptr. 196, 707 P.2d 258].) This is particularly true when, as happened with section 21304, the Legislature adopts without any change the statute proposed by a commission. (40 Cal.3d at p. 199; accord, Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250 [66 Cal.Rptr. 20, 437 P.2d 508].)
The Law Revision Commission comment on Probate Code section 21304 states: “In the interest of predictability, it resolved a conflict in the case law in favor of strict construction. Cf. Garb, The In Terrorem Clause: Challenging California Wills, 6 Orange County [Bar] J. 259 (1979). Strict construction is consistent with the public policy to avoid a forfeiture. Cf. Selvin, Comment: Terror in Probate, 16 Stan. L. Rev. 355 (1964). . . .” (20 Cal. Law Revision Com. com., Deering’s Ann. Prob. Code, § 21304 (1991 ed.) p. 578.) The report of the Law Revision Commission relies on the same sources and is to the same effect. (Recommendation Relating to No Contest Clauses (Jan. 1989) 20 Cal. Law Revision Com. Rep. (1990) p. 12.)
As the preceding comment indicates, the conflict in the case law perceived by the drafters of Probate Code section 21304 was based on the analysis of a bar journal article, Garb, The In Terrorem Clause: Challenging California Wills (1979) 6 Orange County Bar J. 259 (Garb). This article observed that “[although numerous cases state that a no-contest clause should be strictly construed and should be limited in scope so as to include no conduct other than that which the language plainly requires, some recent cases have construed such clauses so broadly as to bring into question the validity of the rule of strict construction.” (Id. at p. 262.) The author distinguished those cases in which the concept of a contest was “given its definitive legal meaning” or limited to “technical attack[s] on the competency of the testator, fraud or undue influence,” from those cases in which the court considered “whether or not the action thwarted the decedent’s intent” or “whether there was a purpose to defeat the provisions of the will” on the part of a beneficiary. (Id. at pp. 263-264.)
As an example of a case that “signalled] a departure from the earlier cases requiring a strict interpretation of the clause,” (Garb, supra, at p. 263) the author cited Estate of Kazian (1976) 59 Cal.App.3d 797 [130 Cal.Rptr. 908], In Estate of Kazian, the court recited the rule of strict construction, but then proceeded to state that whether there was a contest “must be gleaned from a consideration of the purpose[s] that the [testator] sought to attain by the provisions of [his or her] will.” (59 Cal.App.3d at p. 802.)
The “purposes” approach of the Kazian court is virtually identical to the analytic approach used by the majority in this case. (See maj. opn., ante, at *282p. 255.) It is, however, an approach that was flatly rejected by the Legislature when it adopted Probate Code section 21304. By enacting this statute, the Legislature resolved the conflict in the case law by rejecting the Kazian “purposes” approach and by embracing the rule of strict construction.
Here, the majority, following the approach of cases rejected by the Legislature when it endorsed the rule of strict construction by adopting Probate Code section 21304, determines that the purposes of the testator would be best served by a construction of the language of the trust instrument that is dependent upon references to extrinsic indicia of the testator’s intent. This construction flies in the face of the rule that “[a]n intention on the part of the testator to dispose of his wife’s interest in the community property will not be implied where another construction is permissible.” (Estate of Wolfe (1957) 48 Cal.2d 570, 576 [311 P.2d 476].)
The majority recognizes that it must identify a provision of the trust instrument that, in its view, Marlene seeks to “void, nullify, or set aside.” Thus, the majority asserts that Marlene seeks to “void, nullify or set aside” the provision of the trust instrument that provides for the allocation of trust assets to the subsidiary trusts. (Maj. opn., ante, at p. 261.) The problem with this assertion is obvious. As noted earlier, the instrument requires that the property added to the trust estate must be added “according to the terms of the Trust,” and the.terms of the trust specify only that Frank’s separate property, not Marlene’s property, is subject to disposition. Therefore, Marlene’s claim that her property was improperly added to the trust corpus cannot rationally be considered an attempt to void any provision of the trust instrument relating to the subsidiary trusts; instead, it is an attempt to enforce the provision that specifies that property added to the trust estate must be added “according to the terms of the Trust.” The majority’s approach is not strict construction; it is arbitrary and expansive construction. It is at odds with the Legislature’s plainly expressed intent that no contest clauses be strictly construed.
Under a strict and narrow construction of the no contest clause in this case, the clause would be triggered only if a beneficiary sought to have the trust or some particular provision of the trust declared void, or otherwise nullified or set aside. Because the proposed state and federal court complaints in this case seek neither to have the trust instrument nor any of its provisions declared void, or otherwise nullified or set aside, the filing of either complaint would not trigger the no contest clause. This is the only interpretation that is consistent with the Legislature’s express command that no contest clauses be “strictly construed.” To do otherwise, as the majority in this case has done by disregarding the literal meaning of the words in the *283trust instrument in favor of attempting to divine the testator’s intent through declarations of his lawyers, is to abandon the rule of strict construction and to resurrect the very conflict in the case law that the Law Revision Commission and the Legislature sought to put to rest with Probate Code section 21304.
C. Claims to a Community Property Interest
Probate Code section 21303 provides: “Except to the extent otherwise provided in this part, a no contest clause is enforceable against a beneficiary who brings a contest within the terms of the no contest clause.” Despite this broad language, the Legislature did not intend that the statutes governing no contest clauses do so exclusively. Probate Code section 21301 states: “This part is not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no contest clause to the extent this part does not apply.” As the Law Revision Commission comment to this section makes clear, by “the common law” the commission meant “the contemporary and evolving rules of decision developed by the courts in exercise of their power to adapt the law to new situations and to changing conditions.” (Cal. Law Revision Com. com., Deering’s Ann. Prob. Code, § 21301, supra, p. 576.) The comment also indicates that, in developing the common law in this area, the courts are to look to, among other things, “the terms of the no contest clause and the character of the beneficiary’s contest.” (Id. at p. 577.) Here, Marlene’s argument that her proposed state court complaint should not be held to violate the no contest clause is based on the “character of [her] contest.”
Specifically, Marlene contends that, even if the no contest clause would be triggered by the filing of the proposed state court complaint, this court should determine that the clause is not enforceable against her because, under common law principles, a no contest clause does not apply against the assertion of a property interest not arising from the claimant’s status as an heir—for example, a community property interest.
This court has not previously addressed the question. Several Courts of Appeal have considered situations in which a claimant sought to establish an independent property interest in the donated property, with inconsistent results.2 I would hold that no contest clauses are not enforceable against a beneficiary who claims that the trustor or testator has disposed of a legal *284interest, such as a community property interest, in identified personal or real property that is lawfully held by the beneficiary.
My conclusion is based upon several considerations. First, enforcement of a no contest clause to prevent a beneficiary from challenging the trustor’s disposition of property that is not the trustor’s property, but is the property of another, would not aid the public policy favoring enforcement of such clauses. As this court stated in an early case, “[a] testator has the lawful right to dispose of his property upon whatever condition he desires, as long as the condition is not prohibited by some law or opposed to public policy . . . .” (Estate of Miller (1909) 156 Cal. 119, 121 [103 P. 842], italics added.) A later case made the point more expansively: “The property of a testatrix is hers to dispose of as she wills, and she is not called on to consult or follow the wishes or views of her heirs or beneficiaries or of courts or juries. . . . She could give or refrain from giving, and could attach to her gifts any lawful condition which her reason or caprice might dictate. She was disposing of her own property and the beneficiary claiming thereunder must take the gift, if at all, on the terms offered.” (Estate of Fuller (1956) 143 Cal.App.2d 820, 823 [300 P.2d 342], italics added.)
The underlying assumption of these cases is that a no contest clause is valid insofar as it assures that a testator or trustor may, without challenge, dispose of property that belongs to him or her. But the converse of that proposition should also be true: under California law, a no contest clause should not be valid insofar as it allows a testator or trustor to dispose of property that does not belong to him or her.
This point needs little elaboration. Nothing in the policy favoring no contest clauses was designed to encourage theft. Yet if a testator or trustor lays claim to property that does not belong to him or her, and successfully insulates the disposition of such property from challenge by use of a no contest clause, theft is the result.
Several familiar maxims of jurisprudence support my conclusion that a no contest clause cannot be invoked to penalize one who seeks to establish that the property the testator or trustor purported to dispose of was not the testator’s or trustor’s property. “When the reason of a rule ceases, so should the rule itself.” (Civ. Code, § 3510.) The reason for the rule allowing no contest clauses is to allow the testator to dispose of his or her property, not the property of another. Moreover, “[n]o one can take advantage of his [or her] own wrong.” (Civ. Code, § 3517.) For the courts to enforce no contest *285clauses that are used to deprive individuals of their own property would allow the estates and trusts of testators and trustors who have acted wrongly to take advantage of the wrongs of those testators and trustors.
A second, related rationale also supports my conclusion. As this court recognized in Estate of Miller, supra, 156 Cal. at page 121, judicial enforcement of no contest clauses is also limited to situations in which the no contest condition is “not prohibited by some law or opposed to public policy . . , But in this case, and in similar situations, law and public policy do stand in opposition to the trustor’s employment of the no contest clause.
Allowing enforcement of a no contest clause to effectively prohibit assertion of statutorily guaranteed community property rights is contrary to the public policy embodied in Family Code sections. 1100 and 1101. Those sections provide that a spouse may not convey or dispose of community personal property without the written consent of the other spouse, and grant the nonconsenting spouse a right of action against the other spouse for breach of that duty to obtain written consent.
As mentioned earlier, Marlene’s proposed state court complaint alleged that she had a community interest in the ownership of Pacific Coast Ford, and in the car dealership’s pension plan. Although Frank apparently had an ownership interest in Pacific Coast Ford before his marriage to Marlene, he became the sole owner and president of the company during the marriage. The pension plan was created during the marriage. Generally, “all [personal] property . . . wherever situated, acquired by a married person during the marriage ... is community property.” (Fam. Code, § 760.) Accordingly, there is merit in Marlene’s argument that the property Frank transferred without her consent during the marriage was community property.
To allow a spouse to transfer community property during the marriage without the other spouse’s consent and then allow enforcement of a no contest clause to effectively prevent assertion of community property rights is violative of Family Code sections 1100, 1101 and the public policy embodied in these statutes.
The majority reaches a contrary conclusion. That conclusion, however, is based on a misunderstanding of the nature of no contest clauses, and a mistaken and apparently unexamined assumption that there is no legal difference between an “election” under a testamentary instrument and a forfeiture worked by a no contest clause. Moreover, the majority’s conclusion is buttressed by a hypothetical example that illuminates its mistaken view of the respective rights and obligations of the parties.
*286The majority approves the use of no contest clauses to obstruct the assertion of community property rights because no contest clauses are, in the majority’s view, indistinguishable from election clauses in testamentary instruments, which California courts have long approved. (See, e.g., Estate of Wolfe, supra, 48 Cal.2d 570, 574.) But the majority’s reasoning is flawed, and again disregards legislative judgments as to the true nature of no contest clauses. It may be permissible for a trustor to require his or her surviving spouse to elect between an interest as a beneficiary and the spouse’s interest in community property. But, as the Legislature indicated in the legislative history accompanying Probate Code section 21304, a no contest clause entails a forfeiture, not an election. Under a testamentary instrument containing a no contest clause, “the gift vests immediately upon the testator’s death as a vested right and is just as much the beneficiary’s property as if acquired by his [or her] own labor; to wrench it away is precisely what is meant by a forfeiture.” (Selvin, Comment: Terror in Probate (1964) 16 Stan.L.Rev. 355, 368, fns. omitted.) A no contest clause, when it applies, destroys the surviving spouse’s rights under the testamentary instrument simply because the spouse attempts to enforce his or her independent property rights, whether or not the spouse actually succeeds. This harsh result, which is precisely what is contemplated by every trustor or testator who chooses to employ a no contest clause, is simply not possible when a similar, though more benign, election clause is employed instead. An election clause destroys nothing.3
The majority also utilizes a hypothetical example to show the supposed unfairness of any rule that no contest clauses are not enforceable against a spouse who seeks to assert only his or her own interest in community property. (Maj. opn., ante, at p. 267, fn. 14.) Under the majority’s example, a wife who has children by a previous marriage is half-owner of a business in which she works with her children; during her second marriage “she becomes sole owner.” (Ibid.) “Wife understands that her business may be at least in part community property, ... but she nonetheless desires to leave the entire business to her two children from her first marriage . . . .” Accordingly, under the majority’s example, the wife inserts a no contest clause into her will, but under a rule rendering such forfeiture clauses unenforceable against a spouse who asserts his or her own interest in community property, the no contest clause is ineffective. This, the majority says, is an “inequitable result.” (Ibid.)
*287The majority’s hypothetical discloses nothing so much as the majority’s dissatisfaction with the community property laws of this state. Under Family Code section 760, “all [personal] property . . . acquired by a married person during the marriage ... is community property.” Thus, under the majority’s hypothetical, the husband is a co-owner of the business with the wife, whether the wife, or the majority, care for that fact or not. (See Schnabel v. Superior Court (1993) 5 Cal.4th 704, 715 [21 Cal.Rptr.2d 200, 854 P.2d 1117].) There is nothing inequitable about a rule that precludes one spouse from unilaterally disposing of property belonging in part to the other spouse. To the contrary, equitable considerations mandate that the interests of the nonconsenting spouse be protected.
And this simple and fair rule is in no way unworkable; it merely requires that the wife in the majority’s hypothetical disclose her plans in advance to her co-owner and partner-in-marriage, and obtain his consent. The majority seems to find a requirement of disclosure and consent unacceptable; the majority comes dangerously close to endorsing marital duplicity in financial matters.4
Because enforcement of a no contest clause to penalize the assertion of community property rights does not serve the underlying purpose of no contest clauses—to permit the testator or trustor to dispose of his or her own property as desired—and because enforcement of a no contest clause that shields an improper disposition of property belonging to the testator’s or trustor’s spouse would place the court’s seal of approval on a violation of the fiduciary obligations imposed on spouses by the community property laws, I would hold that no contest clauses are not enforceable under these circumstances.
III. No Contest Clauses and ERISA Preemption
According to the allegations of Marlene’s proposed federal court complaint, Pacific Coast Ford Employees’ pension plan is an employee benefit *288plan as defined by 29 United States Code section 1002. Under 29 United States Code section 1055(a), “[e]ach pension plan . . . shall provide that— [][]... HO (2) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity shall be provided to the surviving spouse of such participant.” The plan, a copy of which is attached to the proposed complaint, appears to comply with the requirement for qualified preretirement survivor annuities. It specifies that each participant must designate a beneficiary to receive all death benefits, that a participant who has an eligible spouse must designate that spouse as the beneficiary unless the spouse waives the right to be so designated, and that if no beneficiary is designated, all death benefits are payable to the participant’s surviving spouse. As noted above, Marlene’s proposed federal court complaint asserts that she did not waive any of her rights under ERISA or the plan,5 and that the plan’s trustees have failed and refused to pay her any benefits, to provide an accounting, or to provide any explanation of why the benefits have not been paid.
A. Express Preemption
The majority concludes that ERISA does not preempt operation of the no contest clause in this case. I disagree. California’s no contest law is preempted by ERISA to the extent it interferes with the exercise of federally guaranteed pension rights.
“ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and their beneficiaries in employee benefit plans.” (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co. (1991) 53 Cal.3d 1041, 1047 [282 Cal.Rptr. 277, 811 P.2d 296].) ERISA contains an express preemption clause specifying that the federal regulatory scheme “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .” (29 U.S.C. § 1144(a).) “The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” (29 U.S.C. § 1144(c)(1).)
This preemption provision is broad in its sweep. The United States Supreme Court has characterized it as “deliberately expansive” (Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 46 [95 L.Ed.2d 39, 46-47, 107 S.Ct. 1549]), “broadly worded” (Ingersoll-Rand Co. v. McClendon (1990) 498 *289U.S. 133, 138 [112 L.Ed.2d 474, 483, 111 S.Ct. 478]), and ‘“conspicuous for its breadth’ ” (Morales v. Trans World Airlines, Inc. (1992) 504 U.S._, _ [119 L.Ed.2d 157, 167, 112 S.Ct. 2031, 2037]). The statutory words “relate to” were used by Congress “in their broad sense, rejecting more limited pre-emption language that would have made the clause ‘applicable only to state laws relating to the specific subjects covered by ERISA.’ ” (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 138 [112 L.Ed.2d at p. 483].) Thus, a state law “relates to” a benefit plan “ ‘ “if it has a connection with, or reference to such a plan.” ’ ” (Pilot Life, supra, 481 U.S. at p. 47 [95 L.Ed.2d at p. 48].) “ ‘Because of the breadth of the preemption clause and the broad remedial purpose of ERISA, “state laws found to be beyond the scope of [the preemption clause] are few.” ’ ” (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co., supra, 53 Cal.3d at pp. 1048-1049.)
The breadth of ERISA preemption is not limitless. “Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” (Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 100, fn. 21 [77 L.Ed.2d 490, 503, 103 S.Ct. 2890].) As with all questions of preemption, however, “ ‘ “ ‘[t]he purpose of Congress is the ultimate touchstone.’ ” ’ ” (Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co., supra, 53 Cal.3d at p. 1047, quoting Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 138 [112 L.Ed.2d at p. 483].)
The trustees point out that neither the no contest statutes nor the no contest clause in the trust instrument makes any explicit reference to ERISA, and stress that if Marlene elects to forego taking under the trust, she is free to pursue her ERISA claims.
I find unpersuasive the assertion that, because the no contest law makes no express reference to ERISA, there can be no preemption. The high court has held that ERISA preemption is not limited to “state laws specifically designed to affect employee benefit plans” (Shaw v. Delta Air Lines, supra, 463 U.S. at p. 98 [77 L.Ed.2d at p. 501]), and that “even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern” (Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 525 [68 L.Ed.2d 402, 418, 101 S.Ct. 1895]). It is the substance of a law’s effect on ERISA, not its label or form, that controls. (Ibid.)
The majority concludes that the no contest law as applied in this case is too tenuous, remote and peripheral to ERISA plans for express ERISA preemption to apply.
I cannot agree. Here, the application of the no contest law would interfere with the operation of the plan under federal law. The main practical effect of *290the no contest clause, if valid under California law, would be to condition the exercise of Marlene’s federally protected right to receive ERISA benefits, or even to seek a judicial determination of her entitlement to benefits, on a forfeiture of benefits under the trust instrument.
The leading federal appellate case that has addressed the question of ERISA preemption of state testamentary law has come to a conclusion similar to mine in this case. In MacLean v. Ford Motor Co. (7th Cir. 1987) 831 F.2d 723, 728, the court held that “when ... the terms of an employee pension plan under ERISA provide a valid method for determining the beneficiary, that mechanism cannot be displaced by the provisions of a will.” Here, the ERISA plan provided a method for determining the beneficiary. But, through use of the no contest law, Frank sought to displace Marlene as the beneficiary.
Other federal courts faced with analogous situations have reached results in accord with that of the MacLean court. In Ablamis v. Roper (9th Cir. 1991) 937 F.2d 1450, 1459-1460, the Ninth Circuit held that “[permitting a non-employee spouse to bequeath one-half of a surviving employee’s pension benefits to a third party [under California community property law] would do ‘major damage’ [citation] to ERISA’s objective of ensuring and strengthening pension benefits for retirees and their dependents” and was, therefore, preempted. Similarly, in Iron Workers Mid-South Pension Fund v. Stoll (E.D.La. 1991) 771 F.Supp. 781, 785-786, the court held that Oklahoma domestic property statutes could not operate to change the beneficiary of a pension plan death benefit. (Accord, Meek v. Tullis (W.D.La. 1992) 791 F.Supp. 154, 155-156; see also Gilbert v. Burlington Industries, Inc. (2d Cir. 1985) 765 F.2d 320, 327; Aetna Life Ins. Co. v. Borges (2d Cir. 1989) 869 F.2d 142, 147 & fn. 4.)
As noted above, under the terms of the plan, and in accordance with the substantive terms of ERISA, Marlene is the beneficiary of death benefits. By contrast, under the trust instrument as construed by the majority, all property subject to the trust, including all rights in the plan, is swept into the trust res and distributed according to the trust formulas. Under the trust instrument as the majority have construed it, Marlene is divested of her rights as the plan beneficiary under the terms of the plan and ERISA.
To be sure, this divestment is not absolute. As the trust emphasizes in its brief, even under the no contest law Marlene remains free to pursue her rights under ERISA—at the cost of forfeiting all rights to take under the trust. But the express preemption clause of ERISA does not supersede only those state laws that necessarily have the unconditional effect of depriving a statutorily designated beneficiary of her rights.
*291Indeed, the high court has several times made clear that ERISA’s preemption provision “ ‘displacéis] all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.’ ” (Mackey v. Lanier Collection Agency & Service (1988) 486 U.S. 825, 829 [100 L.Ed.2d 836, 844, 108 S.Ct. 2182] (italics added), quoting Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 739 [85 L.Ed.2d 728, 739, 105 S.Ct. 2380].) Rather, ERISA’s preemption clause supersedes all state laws that “relate to” operation of a plan, unless the effect is ‘tenuous, remote, or peripheral.” I cannot say that the effect of the no contest law on the ERISA plan in this case is “tenuous, remote, or peripheral.” On the contrary, the effect here is direct and substantial: Marlene is compelled to forgo her federally protected right to benefits under ERISA unless she forfeits her right to take under the trust. I conclude that the operation of the no contest law in this case “relates to” the operation of a plan under ERISA, and therefore is preempted under ERISA’s express preemption clause.
B. Implied Preemption
Even when there is no express preemption under ERISA, the United States Supreme Court has held that a state law or action may also be superseded by ERISA under the doctrine of implied preemption. (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. 133.) Generally, the doctrine of implied preemption applies when a challenged state action “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” (English v. General Electric Co. (1990) 496 U.S. 72, 79 [110 L.Ed.2d 65, 74, 110 S.Ct. 2270], quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67 [85 L.Ed.2d 581, 587, 61 S.Ct. 399].)
Here, the issue is whether application of the state no contest law to discourage assertion of rights under ERISA stands as such an obstacle. The majority concludes it does not. The majority is wrong. In Pilot Life Ins. Co. v. Dedeaux, supra, 481 U.S. 41, the United States Supreme Court declared that in ERISA, “Congress set out to ‘protect. . . participants in employee benefit plans and their beneficiaries, by . . . establishing standards of conduct... for fiduciaries of employee benefit plans and by providing for appropriate remedies, sanctions, and ready access to the Federal Courts.’ ” (Id. at p. 44 [95 L.Ed.2d at pp. 45-46], quoting 29 U.S.C. § 1001(b).)
Two other statutes are relevant. Title 29 United States Code section 1140 provides, in pertinent part: “It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, [or] this title ... or for the purpose of *292interfering with the attainment of any right to which such participant may become entitled under the plan [or this title]. . . .”
And 29 United States Code section 1132(a) provides: “A civil action may be brought—[f] . . . (1) by a participant or beneficiary—PR] . . . PR] (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; PR] . . . PR] (3) by a participant, beneficiary, or fiduciary . . . (B) . . . (ii) to enforce any provisions of this subchapter or the terms of the plan . . . .”
Thus, through these statutes Congress has expressly granted beneficiaries the right to bring legal actions to enforce their rights to plan benefits. Here, Marlene’s proposed federal complaint falls “squarely within the ambit” of actions contemplated by these statutes. (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 142 [112 L.Ed.2d at p. 486].)
The legislative history also unmistakably conveys the intent of Congress with regard to lawsuits by plan beneficiaries. The House Report states that “[t]he primary purpose of [ERISA] is the protection of individual pension rights . . . .” (H.Rep. No. 93-533, 1st Sess. (1974), reprinted in 1974 U.S. Code Cong. & Admin. News, p. 4639.) The Senate Report states that the intent of Congress was ‘to remove . . . procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities ... or recovery of benefits due to participants.” (Sen.Rep. No. 93-127, 1st Sess. (1974), reprinted in 1974 U.S. Code Cong. & Admin. News, p. 4871.)
Therefore, in this case, not only is Marlene’s proposed federal court complaint of a type specifically authorized by Congress, but the assertion of the state no contest law as a barrier to her recovery of ERISA rights itself is unlawful under 29 United States Code section 1140. That is, the evident purpose of the no contest clause in the trust instrument is to “interfere] with the attainment of [a] right” to which Marlene became entitled under ERISA.
In any event, the United States Supreme Court has made clear that when it “ ‘ “may fairly be assumed that the activities which a State purports to regulate are protected” ’ ” by ERISA, “ ‘ “due regard for the federal enactment requires that state jurisdiction must yield.” ’ ” (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. at p. 145 [112 L.Ed.2d at p. 488].) Here, it may fairly be assumed that Marlene’s proposed federal complaint is within the contemplation of the drafters of ERISA. Accordingly, any state regulation that stands as an obstacle to assertion of her rights under ERISA, including *293the operation of a no contest clause, must yield and is preempted. The majority’s contrary conclusion is erroneous. State testamentary law cannot stand as an obstacle to the achievement of the congressional goal, even if the federally protected party is not completely divested of her right to pursue the federal remedy, but only substantially discouraged.
Conclusion
In enacting the California Law Revision Commission’s proposed changes to the Probate Code sections governing no contest clauses, including the rule that such clauses be “strictly construed” (Prob. Code, § 21304), the Legislature sought to implement “the public policy to avoid a forfeiture” and to rectify the situation created by previous law, under which “a beneficiary cannot predict with any consistency when an activity will be held to fall within die proscription of a particular no contest clause.” (Recommendation Relating to No Contest Clauses, supra, 20 Cal. Law Revision Com. Rep. at p. 12.) In this case, the majority turns the statutory revision on its head, expansively construing a no contest clause to reach a conclusion resulting in a forfeiture that is plainly unsupported by the language of the trust instrument. In so doing, the majority undermines the legislative scheme, and unavoidably resurrects the very controversy and confusion the Law Revision Commission and the Legislature sought to lay to rest.
It is a fundamental principle of community property law that property acquired during the marriage is presumed to be community property, and it is equally fundamental that one spouse cannot dispose of the property of the community without the other spouse’s consent. In this case, the majority demonstrates its evident dissatisfaction with these fundamental principles by holding that one spouse can indeed dispose of the property of the community without the other spouse’s knowledge or consent, and our courts will allow the spouse to shield his wrongful action through enforcing a no contest clause against the other spouse’s assertion of her community property rights. Ironically, the majority claims that “fairness” supports its result.6
In enacting ERISA, the primary purpose of the United States Congress was to protect individual pension rights, and the Congress explicitly prohibited any “interference] with the attainment of any right” to which a beneficiary might be entitled under an authorized pension plan. (29 U.S.C. § 1140.) In this case, contrary to the unambiguously expressed will of *294Congress, the majority holds that a no contest clause can indeed stand as a successful obstacle to a widow’s assertion of her federally protected pension benefits.
I cannot agree. I would reverse the judgment of the Court of Appeal.
With respect to one cause of action in the state court complaint, the Court of Appeal reversed the trial court, and determined that Marlene could seek declaratory relief regarding her right to reimbursement for certain residential construction costs under the trust. This issue was conceded by the trustees.
Compare, e.g., Estate of Kazian, supra, 59 Cal.App.3d 797 (holding that assertion of community property interest did trigger no contest clause) with Estate of Black (1984) 160 Cal.App.3d 582 [206 Cal.Rptr. 663] (holding that assertion of “palimony” interest did not violate no contest clause) and Estate of Schreck (1975) 47 Cal.App.3d 693, 697 [121 Cal.Rptr. *284218] (holding that assertion of separate property and joint tenancy interests did not violate no contest clause, because “[t]he widow merely claimed what was already her own”).
The majority evidences a fundamental misunderstanding of the forfeiture at issue here, and misreads my dissenting opinion. (See maj. opn., ante, at p. 265.) Marlene’s community property rights are subject to conversion as a result of the operation of the no contest clause in this case, but, contrary to the majority’s assumption, the forfeiture is of her right to take under the trust instrument, not of her rights in community property.
The majority also claims that a rule precluding one spouse from disposing of the other spouse’s interest in community property would be “counterproductive to the interests of surviving spouses” because it might “depriv[e] some spouses of the opportunity to receive a distribution of assets that is potentially more valuable than . . . their community interests in the estate.” (Maj. opn., ante, at p. 267.)
This is misleading. Nothing in the proposed rule set forth in my dissent would preclude a testator from leaving any separate property to his or her spouse. Nor would anything in this dissent preclude use of an election clause to require a spouse to choose between taking under a trust or taking under the community property laws. The only “counterproductive” effect of this dissent would be to discourage one spouse from unilaterally and secretly disposing of assets of the other partner to a marriage.
Our law should encourage spouses to deal fairly and openly with each other, and discourage secretive dealings of the sort the majority approves in this case.
Title 29 United States Code section 1056(d) states that “(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.”
There is an exception for “qualified domestic relations orders,” which are court judgments or orders that relate to child support, alimony payments or marital property rights. (29 U.S.C. § 1056(d)(3).) No party contends, however, that the alleged alienation of Marlene’s rights to death benefits under the plan was made as part of a qualified domestic relations order.
The majority vehemently denies that it has endorsed any breach of marital trust in this case. (Maj. opn., ante, at pp. 273-274.) But the majority cannot deny that, under its rule, a husband can, without the knowledge or consent of his wife, take his wife’s property and give it to his relatives as part of his estate plan. If this underhanded maneuver is not a breach of trust, nothing is.