In Re Marriage of McDonald

This appeal poses the single (heretofore undecided) question whether a workers’ compensation permanent disability lump sum award of $92,500 to a husband, received by him while living separate from his wife against whom he had a proceeding for dissolution of the marriage pending, is the separate property of the husband. The trial court inferentially so found. The wife contends that the award is the community property of the spouses, but she concedes that, under Civil Code section 5126, subdivision (a)(2), the $56,250 the husband received about the same time in settlement of his personal injury action against the third party tortfeasor is properly the husband’s separate property.

The wife relies upon the cases of Northwestern R. Co. v. Industrial Acc. Com., 184 Cal. 484 [ 194 P. 31 ], and Estate of Simoni, 220 Cal.App.2d 339 [ 33 Cal.Rptr. 845 ], In the first of these cases, our Supreme Court permitted a widow of an industrially injured spouse, who had been deserted by that spouse some nine weeks after their marriage, to recover a workers’ compensation permanent disability award on his behalf on the basis that such compensation was community property in which she had an…