Concurring in part, dissenting in part and joined by LAVENDER, J.
T1 I must respectfully dissent from the Court's decision insofar as it affirms the trial court's ruling that the Tortfeasor I settlement funds were marital property subject to division by the court. In my opinion the trial court erred in failing to apply the analytic approach to determine the underlying nature of that settlement and its components.
12 The courts of the various jurisdictions have devised three basic approaches to determine whether funds received by a spouse should be treated as separate property or joint property subject to marital division. They are called, respectively, either (I)mechanistic, (2) unitary, or (B)analytic. Under the mechanistic (or literal) approach, which the trial court followed here, the time of the injury and recovery control the classification of the recovery. Under such approach, as in the instant case, if an award is acquired during marriage, it is deemed marital property regardless of the underlying purpose of the award or the loss it was meant to replace. See Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447(1986); Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986); Marsh v. Marsh, 313 S.C. 42, 437 S.E.2d 34(1993).
13 Directly contrary is the unitary approach, which characterizes the award to the injured spouse as uniquely personal, and treats the entire recovery as his or her separate property. It is not seen as jointly acquired property because it arises from fortuitous cireumstances unrelated to a marital effort to acquire joint property. See Unkle v. Unkle, 305 Md. 587, 505 A.2d 849 (1986); Gloria B.S v. Richard G.S., 458 A.2d 707 (Del.Fam.Ct.1982). Although Plaintiff pressed for the unitary approach in the trial court, on appeal he concedes that the Defendant's claim for loss of consortium, which was included in the Tortfeasor I settlement, would make the unitary approach unusable in this case.
T4 The analytic approach, on the other hand, attempts to determine the underlying nature of the recovery before characterizing it as either separate or joint property. It requires the court to ask: What was the award intended to replace? The purpose for which the award or settlement is received controls its designation, so that to the extent the recovery is compensation for losses to the marital estate, it is marital property, and to the extent it is compensation for a personal loss to a spouse's separate estate, it is separate property. See Johnson v. Johnson, 317 N.C. 437, 346 S.E.2d 430 (1986); Mistler v. Mistler, 816 S.W.2d 241 (Mo.App.1991); Kirk v. Kirk, 577 A.2d 976 (R.I.1990).
1 5 The analytic approach has been consistently embraced by our cases and adopted by this Court. In Christmas v. Christmas, 1990 OK 16, 787 P.2d 1267, this Court held that disability insurance benefits received after a divoree were not joint property subject to equitable division in a divorcee, but were separate property of the recipient spouse. In *111reaching our decision the Court relied on an approach which focuses on the "replacement nature" of the benefits and classifies those benefits according to the nature of the assets they replace. The Court distinguished retirement benefits, which function as a substitute for life savings and would constitute joint property, from disability benefits received after divorcee which would replace post-coverture wages and therefore be the wage earners's separate property. Using this analysis, the Court found it was the nature of the benefits as replacement for husband's wages which determined the classification, not the label of the funds as "disability pension."
6 Applying the instruction of Christmas, that replacement analysis requires the determination of the nature of the benefits, not simply looking at the label of the funds, the Court of Civil Appeals in Rowlan v. Rowlan, 1991 OK CIV APP 88, 817 P.2d 1285, found a wife was not entitled to share husband's federal disability pension including a survivor's annuity, because the nature of the wages replaced by the benefits were in the nature of wages lost from disability which was his separate property.
T7 In Crocker v. Crocker, 1991 OK 130, 824 P.2d 1117, 30 A.L.R. 5th 768, this Court adopted the analytic approach, and held that a workers' compensation award is marital property only to the extent that it compensates for loss of the couple's income during marriage, and is separate property to the extent that it compensates for loss of post-divorce earnings by the injured spouse. We discussed the mechanistic, unitary and analytic approaches, and adopted the analytic one. In doing so, the Court found the "replacement approach" of Christmas helpful, as that analysis closely resembles the analytic approach, in that it attempts to determine the underlying nature of an award before deciding whether it constitutes separate or marital property.
18 The Court noted the analytic approach was derived from divorce actions involving the division of personal injury awards. The Court found that the injured spouse's separate property included economic losses which occurred after the marriage terminated, including the amount of the worker's compensation award which constituted loss of future wages and future medical expenses. The marital property subject to division encompassed the amount of the award which represented lost wages or lost earning capacity during coverture and medical expenses paid during the marriage.
T9 In Taylor v. Taylor, 1992 OK CIV APP 22, 827 P.2d 911, the Court of Civil Appeals addressed the issue of whether the proceeds of a personal injury settlement in an action brought by husband for his injuries were his separate property, and therefore not subject to division as marital property in a divorce case. Based on Crocker, Christmas and Rowlan and decisions from other jurisdictions, the Court found that settlement proceeds may be marital property subject to division on divorcee to the extent that they are intended to compensate the couple for past lost wages or past medical expenses that depleted the marital estate. Addressing the question of non-economic losses of the injured spouse, the Court relied on the analysis of various components of a personal injury judgment set forth in Bandow v. Bandow, 794 P.2d 1346, 1349 (Alaska 1990), a case where both spouses filed a malpractice action against husband's surgeon and received a substantial settlement including an annuity, which was not apportioned between items of damage or allocated for damages suffered by the parties. The trial court determined the annuity was marital property and awarded half to the wife. Addressing the issue of the characterization of the proceeds, the Bandow court found that states adopting the analytic approach generally hold that non-economic losses, both pre-divoree and post-divorce are the separate property of the injured party.
{ 10 The Bandow court made a statement which is quite relevant here:
Damages for pain and suffering, mental anguish, and the like compensate for a loss which is so personal to the claimant spouse that classifying them as marital property would be inequitable.
Nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage at*112tending severe bodily injury. Mental injury, as well, has many of these characteristics. Equally personal are the effects of even mild or moderately severe injury. None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse. Why, then, should the law, seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse? In such case the law would literally heap insult upon injury. The uninjured spouse has his or her separate and equally personal right to an action for loss of consortium. Just as there is no equitable reason for that spouse to profit from his or her exmate's recompense for suffering, there is no justification for allocation of a share in the right to loss of consortium. The only damages truly shared are those discussed earlier, the diminution of the marital estate by loss of past wages or expenditure of money for medical expenses. Any other apportionment is unfair distribution. Amato v. Amato, 180 N.J.Super. 210, 434 A.2d 639, 643 (1981). See also Landwehr v. Landwehr, 111 N.J. 491, 545 A.2d 738, 742-43 (1988) (following Amato).
{11 The Bandow court additionally found that analysis of "property acquired during coverture" or joint efforts required finding that non-economic losses should be treated as separate property, because tort recoveries, similar to inherited property, occur by "fortuitous cireumstances entirely distinct from the efforts or economic undertakings of the marital partners," 794 P.2d at 1350.
{12 In my opinion neither the way the settlement structure was requested nor the subsequent treatment of the proceeds by the parties excused the trial court from conducting an inquiry into the character of the funds. What was the settlement money intended to replace? It was not "jointly acquired" marital property under our established case law. It is the underlying nature of the purpose of the award which determines the classification as marital or separate property, and that determination has never been made. I would remand the matter to the trial court for its evaluation and allocation of the proceeds, using the analytic method.