In Re the Estate of Fred N. Kirkes ( 2013 )


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  •                     SUPREME COURT OF ARIZONA
    En Banc
    In re the                         )   Arizona Supreme Court
    ESTATE OF FRED N. KIRKES          )   No. CV-12-0120-PR
    )
    )   Court of Appeals
    )   Division Two
    )   No. 2 CA-CV 11-0072
    )
    )   Pima County
    )   Superior Court
    )   No. PB20100346
    )
    )   O P I N I O N
    _________________________________ )
    Appeal from the Superior Court in Pima County
    The Honorable Charles V. Harrington, Judge
    REVERSED
    ________________________________________________________________
    Opinion of the Court of Appeals, Division Two
    
    229 Ariz. 212
    , 
    273 P.3d 664
     (2012)
    AFFIRMED
    ________________________________________________________________
    LAW OFFICE OF ETHAN STEELE, P.C.                              Tucson
    By   Ethan Steele
    And
    TIMOTHY A. OLCOTT, P.C.                                Green Valley
    By   Timothy A. Olcott
    Attorneys for Gail J. Kirkes
    WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW,
    & VILLAMANA, P.C.                                         Tucson
    By   Jill D. Wiley
    Attorneys for Joshua C. Kirkes
    ________________________________________________________________
    B E R C H, Chief Justice
    ¶1            This case addresses whether a spouse, at death, can
    leave more than one-half of a community-owned retirement account
    to a non-spouse beneficiary.              We conclude that, absent unusual
    circumstances, the deceased spouse may, as long as the surviving
    spouse receives at least one-half of the community’s value.
    I.    FACTS AND PROCEDURAL HISTORY
    ¶2            Fred Kirkes designated Joshua Kirkes, his son from a
    prior marriage, as the beneficiary of 83 percent of a community-
    owned    individual        retirement     account    (“IRA”).       Gail   Kirkes,
    Fred’s wife at the time of his death, had previously been the
    sole beneficiary on the account, which was held in Fred’s name.
    She challenged the beneficiary designation, asking the superior
    court    to   award   her    the    entire     account   or,   alternatively,     to
    increase her share based on her community interest.
    ¶3            Gail    and    Joshua      filed     cross-motions     for   summary
    judgment.       The superior court granted Gail’s motion, awarding
    her 50 percent of the IRA.                   The court of appeals reversed.
    Analogizing the account to life insurance proceeds, which this
    Court has permitted the holder to leave to a third party, the
    court    remanded     the    case   to   the     superior   court   to   ensure   an
    equitable division of the community.                  In re Estate of Kirkes,
    
    229 Ariz. 212
    , 215-16 ¶¶ 14, 18, 
    273 P.3d 664
    , 667-68 (App.
    2012).
    2
    ¶4               We granted Gail’s petition for review to address a
    recurring issue of statewide importance.                            We have jurisdiction
    under Article 6, Section 5(3) of the Arizona Constitution and
    A.R.S. § 12-120.24.
    II.    DISCUSSION
    ¶5               During   marriage,        each      spouse    has    an    undivided       half
    interest in community property.                       Nat’l Union Fire Ins. Co. of
    Pittsburgh, Pa. v. Greene, 
    195 Ariz. 105
    , 110 ¶ 20, 
    985 P.2d 590
    , 595 (App. 1999).              Generally, either spouse has the power to
    dispose of community property, see A.R.S. § 25-214(C), and each
    spouse owes the other certain fiduciary duties, Gerow v. Covill,
    
    192 Ariz. 9
    , 18 ¶ 40, 
    960 P.2d 55
    , 64 (App. 1998).
    ¶6               Community property jurisdictions are split on whether
    the    disposition        of      non-probate         community       property      at    death
    should be viewed as a whole, or whether the community interest
    should      be    divided      based   on    the       value    of    each       major   asset.
    Compare Estate of Wilson v. Bowens, 
    227 Cal. Rptr. 794
    , 798
    (Cal. Ct. App. 1986) (payable on death designation on community
    bank account effective only as to a one-half interest), with
    Byrd   v.    Lanahan,       
    783 P.2d 426
    ,      429    (Nev.    1989)      (designation
    effective to the extent the surviving spouse receives half of
    the    overall      community).           Upon       the    death    of    one    spouse,   the
    community dissolves, with half of the value of community assets
    going to the surviving spouse and the other half passing subject
    3
    to disposition by the deceased spouse.                             Gaethje v. Gaethje, 7
    Ariz.    App.        544,   549,       
    441 P.2d 579
    ,        584   (1968).        States
    restricting          transfers     of        community      property       to    a    one-half
    interest in individual assets are referred to as following an
    “item theory,” while those applying the more flexible approach
    follow    an    “aggregate         theory.”           See     William      A.   Reppy,     Jr.,
    Application of the “Item Theory” to Fungible Community Property
    Upon    Death    of     Spouse     Exercising         Testamentary         Power,     14   Com.
    Prop. J. 1 (1987); see also Charles E. Zalesky, Comment, The
    Modified       Item     Theory:          An     Alternative          Method     of   Dividing
    Community Property Upon the Death of a Spouse, 
    28 Idaho L
    . Rev.
    1047 (1992).
    ¶7             The    Arizona      Legislature          has    adopted        the    aggregate
    theory    in    allocating         community        property        upon   dissolution       of
    marriage.       See A.R.S. § 25-318.                  And this Court has affirmed a
    policy-owner’s right to designate a non-spouse beneficiary of a
    life insurance policy, and, in doing so, implicitly approved of
    the    aggregate       theory     in    the     context       of    community-owned        life
    insurance.           See Gristy v. Hudgens, 
    23 Ariz. 339
    , 347-48, 
    203 P. 569
    , 572 (1922), disapproved of on other grounds by Day v.
    Clark, 
    36 Ariz. 353
    , 
    285 P. 682
     (1930).                            But no Arizona statute
    specifically addresses the issue here.                        Cf. A.R.S. § 14-3101(A)
    (“Upon the death of a person, his separate property and his
    share of community property devolves to the persons to whom the
    4
    property      is    devised      by   his   last   will,    .   .    .   or   to    those
    indicated          as     substitutes       for    them    in       cases     involving
    renunciation or other circumstances affecting the devolution of
    intestate estates.”            (Emphasis added.)).
    ¶8            In Gristy, we considered the effect of designating a
    third party beneficiary on a life insurance policy for which the
    premiums may have been paid with community funds.                           23 Ariz. at
    348, 203 P. at 572.              Upholding the designation, we noted there
    had been “no showing or statement that such funds were paid in
    fraud of the wife’s rights, and no showing that the wife had not
    received even more than her share of the community property.”
    Id.
    ¶9            Gail counters that we have applied an item theory in
    two other cases, La Tourette v. La Tourette, 
    15 Ariz. 200
    , 
    137 P. 426
     (1914), disapproved of by Mortensen v. Knight, 
    81 Ariz. 325
    , 331, 
    305 P.2d 463
    , 467 (1956), and In re Monaghan’s Estate,
    
    65 Ariz. 9
    ,        
    173 P.2d 107
       (1946).        We   find      these     cases
    inapposite.             La Tourette merely noted that one spouse has an
    interest in the community property before the other spouse’s
    death and that, at death, a spouse may dispose only of his or
    her interest in the community, 15 Ariz. at 207-09, 137 P. at
    428-29,    propositions          with   which     we   agree,   but      which     do   not
    resolve the question here.              In re Monaghan’s Estate held that a
    surviving wife’s share of the community could not be sold to
    5
    satisfy probate expenses.                    65 Ariz. at 22-23, 173 P.2d at 115.
    Neither case adopts the item theory.
    ¶10          In contrast, on facts similar to those here, our court
    of appeals has approved a father’s designation of his son from a
    previous marriage as the beneficiary of a term life insurance
    policy purchased with community assets.                        Gaethje, 7 Ariz. App.
    at 549, 441 P.2d at 584.                In Gaethje, the court relied on Gristy
    to uphold the life insurance beneficiary designation because the
    surviving wife received “at least as much in value as one[-]half
    of    all   of   the    community        and    other     jointly     acquired    property
    (including therein the proceeds of the life insurance policy
    here in question).”               Id.    That is, rather than looking at each
    item of property, the court looked at the aggregate value of the
    community property.               Id.; see also In re Estate of Alarcon, 
    149 Ariz. 336
    , 339, 
    718 P.2d 989
    , 992 (1986) (describing Gaethje’s
    consideration          of    value      of    all    community      property     including
    insurance proceeds as “[o]ne approach approved in Arizona”).
    ¶11          Because of the “unique nature” of retirement accounts,
    Gail urges us to distinguish them from life insurance proceeds.
    She argues primarily that retirement accounts are distinctive
    financial        planning         devices       that      receive     special     creditor
    protections       and       tax   benefits,         and   therefore    require     special
    protections for the surviving spouse.
    6
    ¶12           We decline to apply a different rule to retirement
    accounts.           Although       such     accounts        are    useful   devices       for
    retirement planning, life insurance may serve similar purposes.
    We     likewise      find      Gail’s      tax-related        arguments     unconvincing
    because      life      insurance      proceeds       also    enjoy      preferential      tax
    treatment.          See, e.g., I.R.C. § 101(a)(1) (excluding certain
    life insurance benefits from gross income); A.R.S. § 43-1001(2),
    (11)    (basing        state-taxed         income     on     federal     adjusted     gross
    income).        Much like retirement accounts, insurance proceeds are
    generally protected from estate creditors, see A.R.S. § 20-1131,
    and    may   receive        ongoing       creditor    protections         through    estate
    planning.       Compare id. § 14-10502 (spendthrift trusts), with id.
    § 33-1126(B) (IRA creditor protections).                            Moreover, both are
    fungible assets.             For these reasons, any distinctions do not
    warrant different treatment.
    ¶13           Joshua asserts that A.R.S. § 14-3916, which authorizes
    the personal representative to “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,”         answers       the
    question     here.          But    that    section     does       not   control     for   two
    reasons.      First, the disposition of the IRA does not involve the
    personal representative.                  Second, Gail seeks only one-half of
    the IRA account.            She did not claim that she would receive less
    7
    than one–half of the community estate’s value if 83 percent of
    the IRA went to Joshua.                We do agree, though, that § 14-3916
    supports the result we reach today by authorizing consideration
    of the value of the entire estate, including both probate and
    non-probate assets.              See also A.R.S. § 14-1102(B)(2) (noting
    underlying    purpose       of    probate          code    to     effectuate         decedent’s
    intent).
    ¶14          Although       equitable         considerations             may     occasionally
    warrant a different outcome, Gail does not allege any unique
    circumstances making Fred’s disposition of the IRA unjust.                                    She
    has not asserted fraud or claimed that she will receive less
    than   her   full     community        share       if     the    decedent’s         beneficiary
    designation is honored.             We therefore hold that one spouse may
    designate a non-spouse beneficiary of more than 50 percent of a
    community    property       retirement         account,          as    long    as    the   other
    spouse     receives       half    of    the        community          overall,       and   other
    circumstances do not make the distribution fraudulent or unjust.
    See, e.g., Finck v. Finck, 
    9 Ariz. App. 382
    , 388, 
    452 P.2d 709
    ,
    715 (1969) (“peculiar circumstances” warranted ensuring husband
    maintained a one-half interest in community-owned stock after
    divorce).     The beneficiary designation here is effective.
    III.        CONCLUSION
    ¶15          For    the    foregoing      reasons,          we    affirm       the    court    of
    appeals’ opinion and reverse the superior court’s order.                                      The
    8
    IRA   shall   be   distributed   in    accordance   with   the   beneficiary
    designation.
    __________________________________
    Rebecca White Berch, Chief Justice
    CONCURRING:
    __________________________________
    Scott Bales, Vice Chief Justice
    __________________________________
    A. John Pelander, Justice
    __________________________________
    Robert M. Brutinel, Justice
    __________________________________
    Michael J. Brown, Judge*
    *    Pursuant   to  Article   6,  Section   3   of  the   Arizona
    Constitution, the Honorable Michael J. Brown, Judge of the Court
    of Appeals, Division One, was designated to sit in this matter.
    9