                                                                 FILED BY CLERK
                            IN THE COURT OF APPEALS                MAR -8 2012
                                STATE OF ARIZONA
                                  DIVISION TWO                       COURT OF APPEALS
                                                                       DIVISION TWO



                                    )            2 CA-CV 2011-0072
                                    )            DEPARTMENT A
                                    )
In re the ESTATE OF FRED N. KIRKES. )            OPINION
                                    )
                                    )
                                    )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. PB20100346

                     Honorable Charles V. Harrington, Judge

                        REVERSED AND REMANDED

Ethan Steele                                                                Tucson

  and

Timothy A. Olcott                                                      Green Valley
                                                  Attorneys for Petitioner/Appellee
                                                                      Gail J. Kirkes

Waterfall Economidis Caldwell Hanshaw &
 Villamana, P.C.
 By Jill D. Wiley and Corey B. Larson                                      Tucson
                                                Attorneys for Respondent/Appellant
                                                                  Joshua C. Kirkes


H O W A R D, Chief Judge.
¶1            Appellant Joshua Kirkes appeals from the trial court’s grant of partial

summary judgment in favor of Gail Kirkes in the probate proceedings for the estate of

Fred Kirkes. Joshua argues the trial court erred by determining that Gail was entitled to

half of an individual retirement account (IRA) as community property and contends that

instead she was entitled to fifty percent of the entire community property estate, not half

of a particular item. For the following reasons we reverse the grant of partial summary

judgment and remand for further proceedings.

                         Factual and Procedural Background

¶2            The underlying facts are undisputed. Gail and Fred were married at the

time of Fred’s death. Joshua is Fred’s son from a previous marriage. Fred named Gail as

the sole beneficiary of his will. During the marriage, Fred created an IRA in his name

and named Gail as the sole beneficiary.         He then modified the IRA beneficiary

designation, naming Joshua as beneficiary of eighty-three percent of the IRA and Gail as

beneficiary of seventeen percent. Fred died. Both parties agree that all assets contained

in the IRA are community property.

¶3            Gail filed a petition for declaration of rights, requesting the trial court

invalidate the IRA beneficiary designation, which Joshua opposed.1 The parties filed

cross-motions for partial summary judgment on the issue. The court granted Gail’s

motion and denied Joshua’s, declaring Gail entitled to half of the IRA. The court issued a




       1
        Joshua does not contest that this is a proper procedure for determination of rights
in an IRA.
                                            2
final judgment on the issue pursuant to Rule 54(b), Ariz. R. Civ. P., and this appeal

followed.

                                       Discussion

¶4             We review de novo a grant of summary judgment. Valder Law Offices v.

Keenan Law Firm, 212 Ariz. 244, ¶ 14, 129 P.3d 966, 971 (App. 2006). Summary

judgment is required when there is “no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c). On

appeal, we must determine de novo whether the trial court correctly applied the

substantive law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, ¶ 4, 7 P.3d 136, 139

(App. 2000).

¶5             Joshua argues the trial court erred by invalidating Fred’s naming him as

beneficiary of more than fifty percent of the IRA based on Gail’s community property

interest. He claims the court followed the item theory of division of community property

at death, rather than the aggregate theory, asserting that Arizona has followed the

aggregate theory. He asserts that under the aggregate theory the trial court should have

determined whether Gail had received other property that compensated her for the

diminished portion of the IRA.

¶6             Under the item theory of community property each spouse has “a one-half

interest in each item of community property,” whereas under the aggregate theory each

spouse has “a one-half interest in the total community property when viewed in the

aggregate.” Charles E. Zalesky, The Modified Item Theory: An Alternative Method of

Dividing Community Property upon the Death of a Spouse, 28 Idaho L. Rev. 1047, 1047-

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48 (1992). One drawback to the item theory is that it prevents the decedent from being

able to convey completely a particular item of community property to a non-spouse and

forces joint ownership of that item. Id. at 1051. This case, however, does not directly

involve how a community property estate must be divided. Rather, it involves one

spouse’s attempted transfer of a community property IRA interest to a non-spouse.

¶7           A beneficiary designation in an IRA is an allowed non-probate, non-

testamentary transfer.2 A.R.S. § 14-6101(A). However, a spouse’s right to transfer

community property is subject to a fiduciary duty to the other spouse’s interest in the

property. Mezey v. Fioramonti, 204 Ariz. 599, ¶ 38, 65 P.3d 980, 989 (App. 2003),

overruled on other grounds by Bilke v. State, 206 Ariz. 462, ¶ 28, 80 P.3d 269, 275

(2003). “[A]bsent intervening equities, a gift of substantial community property to a

third person without the other spouse’s consent may be revoked and set aside for the

benefit of the aggrieved spouse.” Id., quoting Roselli v. Rio Cmtys. Serv. Station, Inc.,

787 P.2d 428, 433 (N.M. 1990).

¶8           We have not been directed to any Arizona statute or case that uses the terms

“aggregate” or “item” theory in distributing a decedent’s assets. Joshua, however, argues

the legislature has “directed” that community interests in all assets be divided in the

aggregate by adopting A.R.S. § 14-3916. That statute states:


      2
        This court requested supplemental briefing “on the issue of the applicability, if
any, of A.R.S. §§ 14-6101 through 14-6227 to the account at issue here.” Gail argues the
statutes do not alter her rights to the IRA. Joshua contends §§ 14-6102 through 14-6227
do not apply in this situation. We conclude those statutes do not affect this case and we
do not address them.

                                           4
             In making a division or distribution of community property
             held in the decedent’s estate, the personal representative may
             consider community property held outside the estate so that
             the division of community property held in the estate and
             outside the estate is based on equal value but is not
             necessarily proportionate.

§ 14-3916.    And under A.R.S. § 14-3101(A), “the surviving spouse’s share of the

community property is subject to [probate] administration.” We agree with the trial court

that § 14-3916 does not control this case directly because we are not dealing with the

distribution of estate assets. We further agree with the trial court that the statute’s

provision that the personal representative may consider whether the division of

community property inside and outside the estate “is based on equal value but is not

necessarily proportionate” is “enigmatic.” But the statute clearly allows the personal

representative to consider non-probate transfers of community property in distributing

estate community property, thereby indicating the legislature considered the aggregate

theory an acceptable method of distributing estate assets. But, by using the permissive

“may,” the legislature did not mandate that this theory be applied, even in distributing

estate assets. Therefore, the statute, by itself, does not indicate that the court erred in

using the item theory.

¶9           Although Arizona courts have not directly adopted either theory, they have

dealt with the attempted alienation of more than a spouse’s share of community property

in the life-insurance context. In Gristy v. Hudgens, 23 Ariz. 339, 341, 348, 203 P. 569,

570, 572 (1922), abrogated by Day v. Clark, 36 Ariz. 353, 357, 285 P. 682, 683 (1930),

the Arizona Supreme Court considered a case in which life-insurance premiums


                                            5
potentially had been paid with community-property funds, but a third party had been

designated as the beneficiary. It held that even if the premiums had been paid with

community property, any insurance benefits paid to a non-spouse did not defraud the

wife, in part because there existed “no showing that the wife had not received even more

than her share of the community property.” Gristy, 23 Ariz. at 348, 203 P. at 572.

Similarly, in Gaethje v. Gaethje, 7 Ariz. App. 544, 546, 441 P.2d 579, 581 (1968), this

court was asked to determine the validity of a life-insurance policy beneficiary

designation which named a son as the beneficiary instead of the deceased’s spouse. We

relied on Gristy in holding that when a deceased spouse has made a testamentary or non-

testamentary provision for the surviving spouse, under which the surviving spouse

receives at least half of the community property, “then there has been no ‘fraud’ upon

[the surviving spouse’s] rights and the designation of beneficiary should stand effective.”

Gaethje, 7 Ariz. App. at 547, 549, 441 P.2d at 582, 584. However, if the surviving

spouse did not receive half the community property, then “there would be a constructive

fraud upon [the surviving spouse’s] rights and the designation would be ineffective to the

extent of such constructive fraud.” Id. at 549, 441 P.2d at 584.

¶10           In considering the benefits from a life-insurance policy, the Arizona

Supreme Court recognized the method of allocating community property in Gaethje as

“[o]ne approach approved in Arizona,” but did not identify any other approved methods.

In re Estate of Alarcon, 149 Ariz. 336, 339, 718 P.2d 989, 992 (1986). And this court

repeatedly has cited the approach in Gaethje in subsequent cases concerning life-

insurance proceeds. See, e.g., In re Estate of Agans, 196 Ariz. 367, ¶ 4, 998 P.2d 449,

                                             6
450 (App. 1999); Guerrero v. Guerrero, 18 Ariz. App. 400, 402, 502 P.2d 1077, 1079

(1972), abrogated by § 14-6101; Carpenter v. Carpenter, 150 Ariz. 130, 135, 722 P.2d

298, 303 (App. 1985), vacated in part on other grounds by Carpenter v. Carpenter, 150

Ariz. 62, 63, 722 P.2d 230, 231 (1986).

¶11           Gail, however, suggests the Arizona Supreme Court earlier implicitly had

applied the item theory in La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426 (1914),

abrogated by Mortensen v. Knight, 81 Ariz. 325, 331, 305 P.2d 463, 467 (1956).

However, La Tourette did not address which theory to apply but instead set forth the rule

that a wife had an interest in community property before her husband’s death, although

she acquired management and control of her share only at his death. 15 Ariz. at 207-08,

137 P. at 428-29. Thus, La Tourette is inapposite.

¶12           Gail also argues that in In re Monaghan’s Estate, 65 Ariz. 9, 22-23, 173

P.2d 107, 115 (1946), our supreme court applied the item theory when it held that only

the decedent’s share of real property could be sold to pay probate expenses. However,

the court considered only the issue of whether the wife’s portion of community property

could be sold to satisfy probate expenses; it did not consider or adopt either theory of

community property disposition. In re Monaghan’s Estate, 65 Ariz. at 22-23, 173 P.2d at

115. Gail further relies on Propstra v. United States, 680 F.2d 1248, 1250-51, 1251 n.3

(9th Cir. 1982), but that case dealt with valuation of an estate for federal tax purposes and

not whether Arizona followed the “item” or “aggregate” method for determining

community property interests in the administration of an estate. Furthermore, “federal

decisions on state law issues do not bind us.” Dube v. Likins, 216 Ariz. 406, ¶ 37, 167

                                             7
P.3d 93, 104 (App. 2007). We conclude Arizona cases have adopted and relied on

Gaethje’s approach in the context of life-insurance proceeds and have not clearly adopted

or rejected an item theory.

¶13           Gail next contends that prior Arizona cases concerning life-insurance

beneficiary designations should not control, because retirement accounts are of a “special

nature.” She argues retirement accounts are intended to provide financial security for a

surviving spouse. She further suggests that we adopt a “modified item theory” in which

most community property is distributed on an item basis, but fungible property is

distributed on an aggregate basis. See Zalesky, supra, at 1067-70. Gail argues that the

item theory should apply here again because of the special nature of retirement accounts.

¶14           However, both life-insurance policies and retirement-account beneficiary

designations are methods of allocating assets for the future, and both may be used to

provide for a surviving spouse. Moreover, both proceeds from life-insurance policies and

IRA assets are fungible, in that they are money or may be sold easily. Even under a

modified item theory, which we do not adopt here, fungible assets are divided in the

aggregate. Id. Although Gail analogizes the IRA to other retirement plans governed by

federal law, she concedes those statutes do not apply here. Therefore, Gail has failed to

differentiate an IRA beneficiary designation from a life-insurance beneficiary designation

or demonstrate that the item theory was properly employed here. Rather, applying the

same rule that applies to a life-insurance beneficiary designation to an IRA beneficiary

designation achieves consistency in related legal issues.



                                             8
¶15           Gail further relies on a case from Louisiana in which the court

differentiated between profit-sharing plans and life-insurance policies. T. L. James & Co.

v. Montgomery, 332 So. 2d 834, 844-45 (La. 1975).            But, in that case, the court

acknowledged that the Louisiana Constitution and civil code always had treated life

insurance distinctly and, therefore, the court did not apply general statutes and principles

of law to life insurance. Id. at 845. Gail provides no authority for the proposition that

Arizona historically has treated life-insurance policies in a distinct way. Instead, § 14-

6101(A) includes both individual retirement plans and insurance policies in its list of

non-probate transfers which are non-testamentary.          Thus, we would not find this

Louisiana precedent to be persuasive in any event. Ramsey v. Yavapai Family Advocacy

Ctr., 225 Ariz. 132, ¶ 32, 235 P.3d 285, 294 (App. 2010).

¶16           One purpose of the probate code and related case law is to effect a

decedent’s intent in distributing property.       A.R.S. § 14-1102(B)(2); In re Estate of

Shumway, 198 Ariz. 323, ¶ 7, 9 P.3d 1062, 1065 (2000). As the trial court found, Fred

intended that Joshua receive eighty-three percent of the IRA and Gail receive seventeen

percent. Employing the item theory here would defeat Fred’s intent. Furthermore, Gail

has failed to differentiate an IRA beneficiary designation from a life-insurance

beneficiary designation; both direct the transfer of money to a recipient. Thus, we

conclude the purpose expressed in § 14-1102(B)(2), the reasoning in Gaethje, and the

legislative intent expressed in § 14-3916 control the IRA beneficiary designation here.

We reverse the trial court’s grant of summary judgment in favor of Gail.



                                              9
¶17           Joshua argues the trial court erred by not granting his cross-motion for

summary judgment, contending Gail did not present evidence the beneficiary designation

resulted in a fraud on her interest. But under the IRA beneficiary designation, Joshua

would receive more than fifty percent of a community asset. And, the law concerning

this issue was unclear. The more equitable result is to allow both parties to marshal

whatever evidence is relevant to the legal issue as clarified above.

                                        Conclusion

¶18           For the foregoing reasons, we reverse the trial court’s grant of summary

judgment in favor of Gail and remand for proceedings consistent with this decision.




                                              /s/ Joseph W. Howard
                                              JOSEPH W. HOWARD, Chief Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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