                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MORGAN MILLER; KYLEE MILLER;            
WAYNE HOOVER, and MORGAN
MILLER, as personal representative
of the Estate of Connie Miller,
                                             No. 05-35505
               Plaintiffs-Appellants,
                 v.                            D.C. No.
                                            CV-04-00601-AJB
RITE AID CORPORATION, a Delaware
                                               OPINION
corporation; THRIFTY PAYLESS INC;
STANDARD INSURANCE COMPANY, an
Oregon Corporation,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
                 for the District of Oregon
         Anna J. Brown, District Judge, Presiding

       Argued & Submission Deferred July 11, 2007
                Submitted July 19, 2007
                   Portland, Oregon

                   Filed October 11, 2007

   Before: Stephen Reinhardt, Cynthia Holcomb Hall, and
             Milan D. Smith, Jr., Circuit Judges.

                 Opinion by Judge Reinhardt




                            13795
                  MILLER v. RITE AID CORP.           13797


                        COUNSEL

J. Michael Alexander, Swanson, Lathen, Alexander &
McCann, PC, Salem, Oregon, for the appellants.

Bruce A. Rubin and Jennifer J. Roof, Miller Nash LLP, Port-
land, Oregon, for the appellees.
13798              MILLER v. RITE AID CORP.
                          OPINION

REINHARDT, Circuit Judge:

   This case presents the question whether the estate and
alleged beneficiaries of an employee who was neither enrolled
in, nor eligible for, a life insurance plan regulated by the
Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001, et seq., at the time of her death (which pre-
ceded the time this action was filed) may bring an ERISA
claim. We hold that these parties may not bring such a claim,
and therefore ERISA does not preempt Appellants’ state law
claims.

I.   Factual and Procedural Background

   Connie Miller (“Miller”) was employed by Rite Aid from
approximately 1981 until her death on February 13, 2002. For
some unknown period of time, Rite Aid made deductions
from Miller’s paycheck to pay for life insurance through a
group plan provided by ReliaStar Life Insurance Company
(“ReliaStar”). Appellants claim that the ReliaStar policy pro-
vided for a benefit of approximately $150,000 and that Mil-
ler’s children were the beneficiaries of the policy.

   In February 2001, Miller was diagnosed with terminal can-
cer and was placed on disability until her death one year later.
On July 1, 2001, before Miller’s death, Rite Aid terminated
its ReliaStar plan and replaced it with a group plan provided
by Standard Insurance Company (“Standard”). Miller was not
enrolled in the Standard life insurance plan because she was
not included in the list of employees exempt from the plan’s
“active at work” requirement, which provided that

     If you are incapable of Active Work because of
     Sickness, Injury or Pregnancy on the day before the
     scheduled effective date of your insurance . . . your
     insurance will not become effective until the day
                       MILLER v. RITE AID CORP.                      13799
      after you complete one full day of Active Work as
      an eligible member. [ ] Active Work . . . mean[s]
      performing the material duties of your occupation at
      your Employer’s usual place of business.

Therefore, Miller was not enrolled in a group life insurance
plan after Rite Aid terminated the ReliaStar plan. Miller also
did not convert the ReliaStar group plan into an individual plan.1

   Appellants allege, without any details, that Rite Aid “of-
fered, as part of the employment agreement [with Miller], that
[Miller] would be provided with life insurance.” Appellants
also allege that after Miller became terminally ill Rite Aid
representatives assured her that she would continue to have
life insurance through the time of her death. Miller allegedly
repeated these assurances to her daughter. Appellants also
allege that after Miller’s death Rite Aid representatives told
her daughter that Miller had life insurance at the time of her
death.2 Appellants later discovered that they were not eligible
for any benefits because Miller was not enrolled in any life
insurance plan.

  After Miller died, her children and alleged beneficiaries,
Morgan Miller, Kylee Miller, Wayne Hoover, individually,
and Morgan Miller as personal representative of Miller’s
Estate, filed suit in the Circuit Court of the State of Oregon
against Rite Aid Corporation, Thrifty Payless, Inc.,3 ReliaStar
  1
     The ReliaStar policy stated, “You or your insured dependent may con-
vert this insurance by applying for the individual policy within 31 days
after any part of your Life Insurance . . . stops.” However, under the con-
version provision, Miller would have been eligible to purchase only
$5,000 in life insurance.
   2
     The parties disagree as to whether these statements are hearsay, but the
statements are in any event irrelevant to the preemption question, the only
issue before us on appeal.
   3
     Thrifty Payless, Inc. is the predecessor company of Rite Aid Corpora-
tion. The companies are represented jointly in this appeal, and we refer to
both as “Rite Aid.” We sometimes refer to Appellants as “the Millers.”
13800              MILLER v. RITE AID CORP.
Insurance Company, and Standard Insurance Company. In
their Amended Action, they alleged breach of insurance con-
tract against ReliaStar and, in the alternative, against Stan-
dard, for failure to pay death benefits worth approximately
$150,000. Alternatively, Appellants alleged breach of
employment contract against Rite Aid for failing to provide
Miller with life insurance. The Millers also alleged that Rite
Aid negligently failed to “ensure that [Miller’s] fringe bene-
fits would be preserved.”

   The defendants removed the action to the United States
District Court for the District of Oregon, on the ground that
the District Court had federal question jurisdiction because
ERISA preempted the Appellants’ state law claims. In the
alternative, the defendants claimed that the District Court had
diversity jurisdiction with respect to Rite Aid.

   Appellants voluntarily dismissed their claim against Relia-
Star, and Standard and Rite Aid filed motions for summary
judgment. The district judge granted summary judgment in
favor of Standard, and Appellants did not appeal that deci-
sion. In the district court, Rite Aid contended that Appellants’
state common law claims were preempted by ERISA. Rite
Aid further argued that the Millers did not have valid common
law or ERISA claims against it because ReliaStar provided
instructions for converting the group policy to an individual
policy, and because “Miller was not even eligible to receive
life insurance through Rite Aid” due to the Standard policy’s
“active at work” requirement. The district judge granted sum-
mary judgment on the preemption ground and dismissed the
action.

  The Millers appealed. Rite Aid is the only appellee.

II.   Discussion

   State common law claims are preempted by ERISA “inso-
far as they may now or hereafter relate to any employee bene-
                   MILLER v. RITE AID CORP.              13801
fit plan” regulated by ERISA. 29 U.S.C. § 1144(a). But before
a court wades into this provision’s “veritable Sargasso Sea of
obfuscation,” it must first resolve the simpler question of
whether a party may assert a claim under ERISA. Toumajian
v. Frailey, 135 F.3d 648, 653 n.3 (9th Cir. 1998) (citation and
internal quotation marks omitted). See also Burrey v. Pac.
Gas & Elec. Co., 159 F.3d 388, 392 (9th Cir. 1998); Curtis
v. Nev. Bonding Corp., 53 F.3d 1023, 1026-27 (9th Cir.
1995).

   [1] A civil action under ERISA may be brought by a “par-
ticipant” in or “beneficiary” of an ERISA plan. 29 U.S.C.
§ 1132(a)(1). ERISA does not preempt the claims of parties
who do not have the right to sue under ERISA because they
are neither participants in nor beneficiaries of an ERISA plan.
Curtis, 53 F.3d at 1027. As we stated in Harris v. Provident
Life & Accident Insurance Co., 26 F.3d 930, 934 (9th Cir.
1994), “it would be contradictory to rule that state law claims
are preempted where the court has already held that the same
plaintiffs may not assert a claim under ERISA because they
are not ‘participants’ in the ERISA plan. . . . Unlike the Che-
sire [sic] Cat, one cannot have the smile of preemption with-
out the stripes of participation.” (citations and internal
quotation marks omitted).

   Appellants, the Miller’s estate and her beneficiaries, may
bring a civil suit under ERISA only if Miller was a “partici-
pant” in an ERISA plan at the relevant time. ERISA defines
a “participant” as “any employee or former employee . . . who
is or may become eligible to receive a benefit of any type
from an employee benefit plan . . . or whose beneficiaries may
be eligible to receive any such benefit.” 29 U.S.C. § 1002(7).
The Supreme Court has interpreted this provision to mean that
a party is a “participant” if he is an employee in, or reason-
ably expected to be in, currently covered employment, or if he
is a former employee who has a reasonable expectation of
returning to covered employment, or a “colorable claim” to
13802                 MILLER v. RITE AID CORP.
vested benefits. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 117 (1989).

   Miller was employed by Rite Aid until the time of her
death, so to decide whether Miller was a “participant,” we
must ask whether Miller was either covered by an ERISA life
insurance plan at the relevant time, or whether she may have
become eligible for benefits from such a plan at such time. In
order to establish that Miller “may become eligible,” she
“must have a colorable claim that (1) [she] will prevail in a
suit for benefits, or that (2) eligibility requirements will be
fulfilled in the future.” Id. at 117-18.

   [2] In order to answer the questions before us we must first
identify the relevant time for determining whether Miller was
a “participant.” We have repeatedly held that whether a living
party is a “participant” or “beneficiary” is determined as of
the time the lawsuit is filed. See, e.g., Chuck v. Hewlett Pack-
ard Co., 455 F.3d 1026, 1039 (9th Cir. 2006); Schultz v. PLM
Int’l, Inc., 127 F.3d 1139, 1141-42 (9th Cir. 1997); Crotty v.
Cook, 121 F.3d 541, 544-47 (9th Cir. 1997); Curtis, 53 F.3d
at 1027 (9th Cir. 1995); Parker v. Bain, 68 F.3d 1131, 1138-
39 (9th Cir. 1995); Harris, 26 F.3d at 933; Olson v. Gen.
Dynamics Corp., 960 F.2d 1418, 1422 (9th Cir. 1991), cert.
denied, 504 U.S. 986 (1992); Nishimoto v. Federman-
Bachrach & Assocs., 903 F.2d 709, 714-15 (9th Cir. 1990);
Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir. 1986), cert.
denied, 479 U.S. 916 (1986), abrogated on other grounds by
Kayes v. Pac. Lumber Co., 51 F.3d 1449 (9th Cir. 1995).
However, we have never identified the applicable time for
evaluating the claims of a decedent’s estate and beneficiaries.4
  4
    ERISA does not specify the relevant time, but we have deviated from
our time-of-suit rule only once, when the employer’s termination of the
employee threatened to undermine the enforcement of ERISA’s whistle-
blower provision, 29 U.S.C. § 1140, by an employee who was allegedly
fired for challenging the decision to terminate the plan. McBride v. PLM
Int’l, Inc., 179 F.3d 737, 742-43 (9th Cir. 1999). In this case we do not
need to create an exception to the standard rule because Rite Aid did not
unlawfully single Miller out in a way that undermined her ability to bring
an ERISA claim, or take any other action designed to undermine the
enforcement of ERISA.
                       MILLER v. RITE AID CORP.                      13803
   [3] In the case of a deceased employee, it would seem to
make more sense to look to the time of the employee’s death
to determine whether he is covered by an insurance plan,
although it is inconceivable that there could be any change in
eligibility between the time of death and the time the suit is
filed. This will also be the applicable time for determining
whether the decedent had a colorable claim to benefits.5

   At the time of Miller’s death she did not qualify as a “par-
ticipant” in any ERISA life insurance plan because at that
time she was not covered by any life insurance policy and she
did not have a colorable claim to benefits under any plan.6

   [4] Miller was not covered by the ReliaStar life insurance
plan because Rite Aid terminated the plan before she died.7
   5
     Of course, in the case of someone who dies after filing suit, the rele-
vant time would be the time of the filing of the suit. The Third Circuit has
held that to determine whether someone is a “beneficiary” for the purposes
of adjudicating a claim that the employer did not provide life insurance
plan documents, the party’s status should be evaluated at the time he
requests such documents. Daniels v. Thomas & Betts Corp., 263 F.3d 66,
78 (3d Cir. 2001). Daniels gave no reason for this rule, but adopting the
analogous rule in this case — looking to the time the parties sought bene-
fits — would not affect our holding. The Sixth and Seventh Circuits look
to the time of filing of the suit, which is, as we have noted, for practical
purposes the same as the time of death. See Morrison v. Marsh & McLen-
nan Cos., Inc., 439 F.3d 295, 303-04 (6th Cir. 2006); Neuma, Inc. v. AMP,
Inc., 259 F.3d 864, 878 (7th Cir. 2001).
   6
     It is worth noting that determining what constitutes a colorable claim
to benefits is not the same as determining whether a plaintiff might
recover under any cause of action. The relevant issue is whether a plaintiff
might recover under an ERISA claim. If the only colorable claims avail-
able to a plaintiff were non-ERISA claims, there would be no basis for
stating that such a party could sue under ERISA. See Curtis, 53 F.3d at
1028; Freeman v. Jacques Orthopaedic & Joint Impact Surgery Med.
Group, 721 F.2d 653, 656 (9th Cir. 1983).
   7
     Rite Aid implicitly conceded below that the relevant time for evaluat-
ing Appellants’ ability to bring an ERISA claim against Rite Aid was
some time after Rite Aid terminated the ReliaStar policy. Rite Aid wrote
13804                  MILLER v. RITE AID CORP.
Miller did not have a colorable claim to benefits under the
ReliaStar plan because life insurance plans have no obligation
to pay benefits to any person who is still alive at the time of
termination. Thus, none of the former members of the Relia-
Star plan had any colorable claim to benefits after the plan
was terminated, including Miller. Cf. Ruocco v. Bateman,
Eichler, Hill, Richards, Inc., 903 F.2d 1232, 1236 (9th Cir.
1990) (employee has colorable claim under Maine law requir-
ing distribution of surplus from terminated plan); Scott v. Gulf
Oil Corp., 754 F.2d 1499 (9th Cir. 1985) (employees have
claim to benefits from severance plan of company that laid
them off).8

   [5] Miller was not covered by the Standard life insurance
plan that Rite Aid provided to replace the ReliaStar plan,
because the Standard plan’s active-at-work requirement made
her ineligible for enrollment. If Miller was never eligible for
coverage under the Standard plan she could not have a color-
able claim to benefits under that plan. See Burrey v. Pacific

in its Memorandum in Support of Summary Judgment that “Miller was not
even eligible to receive life insurance through Rite Aid. . . . Because it was
not possible for Rite Aid to enroll Miller in its new group policy with
Standard, Rite Aid could not have wrongly applied group life insurance
plan rules in Miller’s case. Because Rite Aid could not have misapplied
plan rules in Miller’s case, Miller cannot have an ERISA claim against
Rite Aid.” We agree with Rite Aid that the proper time to determine
whether Miller was “eligible to receive life insurance through Rite Aid”
was some time after the termination of the ReliaStar plan. We disagree
with Rite Aid’s contention that Appellants have a claim against ReliaStar
because she was at one time enrolled in a ReliaStar group plan.
   8
     Rite Aid incorrectly asserts that in Scott we based our holding that the
prospective benefits claims were not preempted “on the fact that preemp-
tion would leave the plaintiffs without a remedy under ERISA.” This was
not the basis for Scott’s holding. Although we did mention this fact in
passing, it was only after concluding that “Freeman controls plaintiffs’
claims for prospective severance benefits.” Scott, 754 F.2d at 1505. Free-
man, 721 F.2d at 656-57, makes no mention of the effect of preemption
on available remedies.
                   MILLER v. RITE AID CORP.               13805
Gas & Elec. Co., 159 F.3d 388, 396 (9th Cir. 1998); Curtis,
53 F.3d at 1028; Harris, 26 F.3d at 933-34.

   [6] Finally, the alleged fact that Rite Aid promised life
insurance coverage to Miller or her daughter does not make
Miller a “participant,” because mere promises do not create
ERISA plans “unless . . . the benefits [are] offered pursuant
to an organized scheme,” and “the terms of the offer, in the
context . . . enable a reasonable person to discern the elements
of the benefits scheme.” Winterrowd v. Am. Gen. Annuity Ins.
Co., 321 F.3d 933, 939 (9th Cir. 2003). See also Curtis, 53
F.3d at 1028; Scott, 754 F.2d at 1504. The alleged fact that
Rite Aid agreed to provide Miller life insurance benefits
worth $150,000 does not by itself meet this threshold.

   [7] Because Miller herself was thus not a participant in any
ERISA plan, Miller’s estate cannot bring a suit under ERISA.
Similarly, Miller’s children cannot bring a suit as “beneficia-
ries” of an ERISA plan, because Miller was not a participant
in any plan. ERISA defines a beneficiary as someone desig-
nated by a participant, or “by the terms of an employee bene-
fit plan, who is or may become entitled to a benefit
thereunder.” 29 U.S.C. § 1002(8). Just as we look to the time
of the employee’s death to determine whether he is a “partici-
pant,” we look to the time of death to determine whether the
employee’s children are “beneficiaries.” The claim of Miller’s
children to benefits under ERISA can be no greater than Mil-
ler’s claim.

   Most of Rite Aid’s arguments for why the Millers’ claims
should be preempted assume that Miller was a “participant”
in an ERISA plan. We need not address those arguments in
light of our conclusion that she was not. We will address,
however, Rite Aid’s two arguments that Miller was a partici-
pant.

   [8] Rite Aid’s first argument is that the extent to which it
failed to provide life insurance depends on the terms of the
13806              MILLER v. RITE AID CORP.
ReliaStar policy in which Miller was once enrolled. But a
party does not become a “participant” in a plan merely
because the court will have to look to the terms of a termi-
nated plan to determine the employer’s liability for failure to
create a new plan. See Freeman v. Jacques Orthopaedic &
Joint Implant Surgery Med. Group, 721 F.2d 653, 655-56 (9th
Cir. 1983) (“Even if [the employee] were to win his [state
law] claim . . . . [the employee] would receive as damages
what a participant would receive as a benefit under the plan.
. . . He would not, however, become enrolled in the plan and
become a participant.”). See also Curtis, 53 F.3d 1023; Har-
ris, 26 F.3d 930; Scott, 754 F.2d at 1501, 1505.

   Rite Aid’s second argument is that we should consider Mil-
ler a “participant” in the ReliaStar ERISA plan because Miller
was eligible to convert that plan to an individual policy within
thirty-one days of the plan’s termination. Rite Aid cites
McLeod v. Oregon Lithoprint, Inc., 46 F.3d 956, 957-59 (9th
Cir. 1995), vacated on other grounds, 517 U.S. 1116 (1996),
a case in which we held that the plaintiff was a “participant,”
even though she was never enrolled in an ERISA plan,
because she was at one point eligible to apply for and receive
benefits from an ERISA plan. Therefore, we held, she had a
“colorable claim” that she would prevail in a suit for benefits.
Rite Aid argues that Miller is in a similar position because she
was eligible to convert the terminated ReliaStar plan to an
individual policy.

   [9] But unlike the plaintiff in McLeod, Miller was not eligi-
ble to receive benefits from an ERISA plan, because con-
verted plans are not ERISA plans. Such plans cover members
as individuals, not as employees, and an employee benefit
plan must cover at least one employee to constitute an ERISA
benefit plan. Waks v. Empire Blue Cross/Blue Shield, 263
F.3d 872, 875-76 (9th Cir. 2001). Even if Miller had con-
verted the ReliaStar plan, that would not make her a “partici-
pant” in any ERISA plan. Thus, that Miller had an
opportunity to convert does not make her a participant. All
                    MILLER v. RITE AID CORP.             13807
this is wholly aside from the fact that Miller was offered only
an opportunity to convert a $150,000 policy to a $5,000 bene-
fit.

III.   Conclusion

   [10] We hold that the state law claims brought by Appel-
lants are not preempted because Appellants are not partici-
pants in or beneficiaries of an ERISA plan. We therefore
VACATE the District Court’s grant of summary judgment,
and REMAND for further proceedings consistent with this
opinion.
