[Cite as LeBlanc v. Wells Fargo Advisors, L.L.C. , 196 Ohio App.3d 213, 2011-Ohio-5553.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY LeBLANC et al., : : Appellants, : A ppellate Case No. 24348 : v. : Trial C ourt Case No. 10-CV-1926 : WELLS FARGO ADVISORS, L.L.C. : et al., : (Civil Appeal from : ( Common Pleas Court) Appellees. :

. . . . . . . . . . . O P I N I O N Rendered on the 28 th day of October, 2011.

. . . . . . . . . . . Brannon & Associates and Davi d D. Brannon, for appellants.

Dungan & LeFevre Co., L.P.A., and Jame s D. Brookshire, for appellee Cynthia Burchfield. Ulmer & Berne, L.L.P., and Pamela K. Gi nsburg, for appellee Wells Fargo Advisors, L.L.C. Paul Courtney, for appellee Bruce Leland.

. . . . . . . . . . . . . H ALL , Judge. {¶ 1} Appellants Lori LeBlanc and Gloria Welch appeal from the trial court’s decision and entry sustaining a cross motion fo r summary judgment filed by appellee Cynthia Burchfield. The motion concerned, among ot her things, the disposition of individual 2

 retirement accounts (“IRAs”) held in the name of John Burchf ield by the custodian, Wells Fargo. {¶ 2} LeBlanc and Welch advance two assignment s of error on appeal. First, they contend that the trial court e rred in declaring John’s two IRAs to be marita l property when, they argue, one of them was separate property and the other one was, at most, commingled property. 1 Second, they claim that the trial court e rred in refusing to find that IRA custodian Wells Fargo Advisers waived compliance with its change-of-beneficiary procedure by interpleading the disputed funds to the court. {¶ 3} The record reflects that John married Cynthia on May 5, 2007. Prior to the marriage, John maintained two IRA accounts. A few days before the marriage, the first account had a closing value of $250,313.33, and th e second account had a closing value of $15,334.98. When John originally opened the account s, he designated Gloria Welch, his mother, and Bruce Leland, his stepfather, as be neficiaries. Shortly before his marriage, however, John named Cynthia as the beneficiary on both IRAs. {¶ 4} On October 28, 2009, John sent his Wells Fargo financial adviser, Aaron Michael, an e-mail stating that he and Cynthia were getting divorced and requesting paperwork to change his IRAs. Michael res ponded by e-mail, asking John to let him know whom John wanted as the beneficiary. John subsequently spoke to Michael by phone and explained whom he wanted to be the new bene ficiaries. Michael had the forms completed with Welch and Leland as primary beneficiaries, in the amount s of 75 percent and 25 percent

1 For purposes of clarity, we refer to John and Cynthia Burchfield by their first names. 3

 respectively. 2 Lori LeBlanc, John’s sister, was listed as the contingent be neficiary. Michael proceeded to send John these necessary change -of-beneficiary forms. Before doing so, Michael predated them November 2, 2009, as he believed that John would return them to him by then. {¶ 5} Cynthia served John with a complaint for divorce and a restraining order on November 5, 2009. The restraining order prohib ited John from, inter alia, transferring any accounts or any other interest in any asset. Around the same time, John spoke to Michael again and advised him that the change-of-benefic iary forms were “taken care of.” Michael assumed this meant that John had mailed the forms back to Wells Fargo. {¶ 6} John committed suicide on December 16, 2009. After his death, Michael and one of John’s co-workers, Jeff Miller, discovered the signed and completed change-of-beneficiary forms in an envelope am ong John’s personal papers. Michael gave the forms to his manager at Wells Fargo. A disput e then arose regarding the beneficiary of the
IRAs. {¶ 7} Welch filed the present action in Marc h 2010. Joining her as a plaintiff was LeBlanc, who was acting as executor of John’s es tate. In their complaint, LeBlanc and Welch sought, among other things, a declaratory judgme nt enforcing the change-of-beneficiary forms. Cynthia filed a counterclaim, seeking a deter mination that she was th e proper beneficiary of the IRAs. Wells Fargo, which also had been na med a party, originally filed its answer. Shortly thereafter, Wells Fargo was granted leave to file an amended answer. It filed an answer and a counterclaim and cross-claim for interpleader on May 27, 2010. Therein, Wells

2 Bruce Leland has since disclaimed any interest in probate or nonprobate assets of the decedent, and he was dismissed from the case. 4

 Fargo asserted no interest in the dispute and offe red to hold the IRA funds in trust or to turn them over to the court pending resolution of the matter. {¶ 8} LeBlanc and Welch moved for partial su mmary judgment in July 2010. Their motion addressed only the prope r beneficiary of the IRAs. Cynthia responded with a September 2010 cross-motion for summary judgment on all issues, including the beneficiary of the IRAs. On November 16, 2010, the trial c ourt filed separa te entries denying the motion filed by LeBlanc and Welch and sust aining the motion filed by Cynthia. 3 With regard to the two IRAs, the trial court held that Cynthia was the sole beneficiary of them. In reaching this conclusion, the trial c ourt found that John’s change-of-benef iciary forms were of no legal effect because he had failed to comply with Wells Fargo’s wr itten policy, which required them to be returned to the company. 4 Furthermore, with regard to the larger of the two IRAs, the trial court held that it qualified as marita l property because John had deposited $74,062.47 into it during the marriage. Based on its determination that the larger IRA was marital property, the trial court reasoned that Wells Fargo could not waive compliance with its change-of-beneficiary procedure or actually chan ge the beneficiary without Cynthia’s consent, which did not exist. This timely appeal followed. {¶ 9} In their first assignment of error, LeBlanc and Welch contend that the trial court erred in declaring the IRAs to be marital property when the smaller one was separate property and the larger one was, at most, commingled property.

3 Although the trial court resolved other issues, they are not pertinent to the present appeal, which concerns only the disposition of the IRA funds.

4 The trial court determined that John’s right to change his beneficiary terminated upon his death. Therefore, the trial court found it irrelevant that the change-of-beneficiary forms eventually found their way to Wells Fargo after John committed suicide. 5

 {¶ 10} Upon review, we find that characteriza tion of the IRA accounts as marital or nonmarital property is applicable only in domes tic-relations cases, which the present case is not. First, if a death of either party occurs before a decision is made in a divorce action, the action abates. State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 99, and Porter v. Lerch (1934), 129 Ohio St. 47, 56. Therefore, there is no active domestic-relations case

. Second, the statute that de fines what is marital and separate property is limited by its terms to domestic-relations courts and their proceedings. R.C. 3105.171, entitled “Division of marital property; separate property,” is prefaced, “(A) As used in this section,” thereby limiting applicability to domestic-relations matters. The statute further provides: “(B) In divorce proceedings, the court shall, and in legal separation proceedings * * *, the court may, determine what constitutes marital property and what constitutes separate property.” Id. Nothing in the domestic-relations statutory scheme indicates that it would be applicable to determination of marital or separate propert y outside the domestic-relations context. We therefore determine that those statutes are inapplicable to the dispute before us. To the extent that the appellants’ first assignment of error asserts that the trial court erred by determining that the IRA accounts were partia lly marital property, we agree, not because the court should have decided differently that the accounts we re separate property, but because R.C. 3105.171 does not apply. Nevertheless, to determine the correct be neficiaries to receive John’s property following his death, it is unnecessary to decide whether the IRA funds were separate or marital property. Therefore, any error made by analyzing the IRAs as marital property is not dispositive of this appeal. The first assignment of error is overruled. {¶ 11} In their second assignment of error, LeBlanc and Welch claim that the trial 6

 court erred in refusing to find that Wells Fargo waived compliance with its change-of-beneficiary procedure by interpl eading the disputed funds to the court. {¶ 12} This argument stems from John’ s failure to return the two change-of-beneficiary forms to Wells Fargo prior to his death. Under Wells Fargo’s written policy, a change-of-beneficiary form is not effective until after it is completed, signed, and delivered to the company. Whether the decedent is the one who signed his name to the forms is a matter of some dispute. But construed mo st strongly in favor of LeBlanc and Welch, the evidence could suggest, and for our analysis we will assume, that John completed and signed the forms. There is no dispute, and no genuine i ssue of fact, that the forms were not returned to Wells Fargo before John died. The unretur ned forms were found after his death in an envelope among his personal be longings. The issue before us is whether the unreturned forms, or any expression of intent to change the beneficiary, had any legal significance in light of Wells Fargo’s change-of-beneficiary policy, wh ich required the forms to be returned before the beneficiary would be changed. {¶ 13} We believe that the trial court correctly granted summary judgment to Cynthia Burchfield because the decedent did not comply with the contract provision for change of beneficiary, and even if the c ontractual method for change of beneficiary is deemed waived, the decedent did not substantially comply with the provision. As we will explain below, substantial compliance with the contract provisions remains necessary, as part of an “intent of the decedent” analysis, even when actual complia nce has been waived. Accordingly, we will affirm the judgment of the trial court. {¶ 14} The first step in our analysis is to examine the nature of the IRA accounts to 7

 determine what rules apply. The appellants suggest that the case law developed to interpret the change of beneficiaries for life insuran ce policies should apply to these IRA accounts. They refer to Kelly v. May Assocs. Fed. Credit Union , Summit App. No. 23423, 2008-Ohio-1507, in which the Ninth District C ourt of Appeals applied caselaw analysis applicable to life insurance polic ies to an upon-death transfer of an IRA. But a life insurance policy is a contract where, upon the death of th e insured, the company pays a death benefit to the beneficiary. Conversely, an IRA is a tax-advantaged present asset of the owner. 5 Ordinarily, the manner in which a decedent directs the transfer of an asset upon death is by his or her last will and testament. The statute of wills, Chapter 2107 of the Revised Code, has specific formalities. Unless there is an excep tion or exclusion, upon death, an asset becomes part of a decedent’s estate for intestate or testamentary distribution. It is only by the recognition of certain nontestamentar y transfers that assets transfer outside a decedent’s estate. {¶ 15} Common methods to “avoid probate” incl ude joint tenants with right of survivorship (“JTWROS”), payable-on-death acc ounts (“POD”), or trust arrangements. In Ohio, joint and survivorship accounts avoid esta te inclusion, and theref ore the formalities of the statute of wills, by case law. Joint-and- survivorship account validity, as a mechanism for an upon-death transfer, was first recognized in Cleveland Trust Co. v. Scobie (1926), 114 Ohio St. 241, based upon a contract-l aw analysis. See also Wright v. Bloom (1994), 69 Ohio St.3d 596, 604. Those accounts transfer to the survivor . But an IRA account cannot be held as a joint tenant because that would destroy the “individual” aspect and the tax advantages of the

5 We recognize that there are now many and varied fina ncial products that come under the heading of “life insurance.” There are also varied forms of life insurance policies, some of which have a cash value that the owner of the policy can withdraw or borrow against. Nevertheless, we draw a distinction between life insurance and a current asset. 8

 account. 6 A POD account statutorily avoids inclusi on of the asset in a decedent’s estate, and the account is paid upon death to the designated beneficiary. The P OD statute specifically avoids the formalities required by the stat ute of wills. See R.C. 2131.10 (allowing POD accounts “notwithstanding any provisions to th e contrary in Chapter 2107. of the Revised Code”). But the POD account st atute applies only to a “bank, building and loan or savings and loan association, credit union, or society for savings.” Id. Wells Fargo is none of these entities, and John’s “account” is not a traditional cash asset. It is a collection of securities. A properly created inter vivos trust can provide for a current owner as beneficiary during life and, upon death, can provide for contingent benefi ciaries. But there is debate over whether an IRA account is a trust, as evidenced by the lead and concurring opinions in Kelly v. May

Assocs. Although Section 408(a), Title 26, U.S. C ode provides that “ ‘individual retirement account’ means a trust,” given the divergent opinions on the issue, and the potential for unintended consequences, we ar e not willing to hold that IRA accounts in Ohio are trusts. {¶ 16} The foregoing leads us to examine the transfer-on-death provision in R.C. 1709.09. In Bielat v. Bielat (2000), 87 Ohio St.3d 350, the Ohio Supreme Court upheld the validity of the beneficiary clause in an IRA agreement. Bielat specifically referred to R.C. 1709.09(A), which states: “(A) Any transfer- on-death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner of the security and the registering entity and by reason of sections 1709.01 to 1709.11 of the Revised Code and is not testamentary.” Bielat held: “[W]e affirm the judgment of the

6 We note that in Kelly v. May Assocs. , 2008-Ohio-1507, Barbara Kelly apparently decided that upon death she wanted her assets to transfer to her nephew Richar d. She changed all her accounts, except her IRA, to joint accounts with Richard, with right of survivorship. We presume the precise reason she did not similarly change her IRA is that placing an IRA in joint holding would destroy the tax-advantaged status of the account. 9

 court of appeals and uphold the validity of the beneficiary clause in the IRA Adoption Agreement executed between Mr. Bielat and Merrill Lynch.” Bielat at 352. By indicating that an asset “held in beneficiary form” acquire s its effectiveness by reason of the contract, and is not testamentary, R.C. 1709.09(A) and Bielat exclude the transfer from the decedent’s estate (unless the estate is the designated or de fault beneficiary). As a consequence, the asset transfers outside the estate, and the formalities of the statute of wills are not required. We do not interpret R.C. 1709.09 as directly stating that the asset transfers according to the contract, only that the transfer derives its effectiveness from the contract . But if this nontestamentary transfer derives its effectiveness from the contract, a transfer according to the “clearly expressed intent” of the owner is beyond the contract and does not benefit from the nontestamentary characterization of R.C. 1709.09(A). In other words, if a transfer upon death is effective by reason of the “clearly expressed intent” of the insured, as appellant argues we should hold, R.C. 1709.09(A) does not save it from be ing included in the estate, subject to the formalities of the statute of wills and subject to the statutory benefits and elections that a surviving spouse may choose to receive. {¶ 17} The Ohio Supreme Court has wrestled w ith transfers upon death in the context of joint and survivorship accounts, trying to pr ovide predictability, certa inty, and reliability: “[O]ur efforts to determine survivorship rights by a post-mortem evaluation of extrinsic evidence of depositor intent are flawed to the point of offering no predictability * * *. Only when the depositor knows that the terms of the cont ract will be conclusive of his or her intent to transfer a survivorship interest will the depositor be able to make an informed choice as to whether to utilize the joint and survivorship account.” Wright v. Bloom , 69 Ohio St.3d at 10

 604. The court recognized that “[t]he need for uni formity is essential.” Id. In this related context, the court chose predictability and so do we. It is our determination that the beneficiary designation according to the term s of the contract should be controlling. {¶ 18} We return now to Kelly v. May Assocs., 2008-Ohio-1507, which appellants cite for the proposition that a financial custodian waiv es compliance with its change-of-beneficiary policy by interpleading disputed funds to th e court and disclaiming any interest in the outcome. There, Barbara Kelly had an IRA with the May Credit Union and designated her nephew as beneficiary. Kelly later telephoned the company a nd told a teller to make her daughter the beneficiary. The teller completed the necessary form and sent it to Kelly with “per member” written on the signature line. Kelly failed to sign the form before her death. The terms of Kelly’s IRA provided that she coul d change beneficiaries only by completing and signing the form. Kelly’s daughter found a copy of the form following her mother’s death. The daughter filed a declaratory judgment action, the nephew counter claimed, and the credit union interpleaded the funds to the court. {¶ 19} Upon review, the Ninth Distri ct held that by filing an interpleader action, the credit union waived its requirement that a change-of-beneficiary form must be signed. The court determined that the account should be transferred to the daughter based on the clearly expressed intent of the decedent. In reachin g this conclusion, the Ni nth District drew an analogy to cases involving dis putes over the proper beneficiary of life insurance proceeds. The lead opinion states: {¶ 20} “Like the individual retirement account at issue in this case, life insurance policies typically include a proce dure for designating and changing beneficiaries. It has long 11

 been the rule in Ohio that those procedures are intended to protect the insurer from duplicate liability and the insurer is free to waive them. Rindlaub v. Travelers Ins. Co., 175 Ohio St. 303, 305, 194 N.E.2d 577 (1963); Atkinson v. Metropolitan Life Ins. Co., 114 Ohio St. 109, 150 N.E. 748, syllabus paragraph four (1926). Further, if, in the face of conflicting claims to insurance proceeds, the insurer interpleads thos e proceeds, it has waived any interest in the resolution of the claims, including enforcement of the procedure set forth in its policy for designating and changing beneficiaries. Rindlaub, 175 Ohio St. at 305, 194 N.E.2d 577; Atkinson, 114 Ohio St. 109, 150 N.E. 748, at syllabus paragraph five. In such a case, if the insured communicated to the insurer her ‘clearly expressed intent’ to change beneficiaries, the proceeds will be paid to the newly designated bene ficiary rather than the originally designated beneficiary even though the insured failed to comp ly with the process set forth in the policy. Rindlaub, 175 Ohio St. 303, 194 N.E.2d 577, at syllabus paragraph two.” Kelly at ¶ 13. {¶ 21} “A custodian of an individual retirem ent account who files an interpleader action when there is a dispute between potentia l beneficiaries of that account, just like an insurer who files an interpleader action under similar circumstances, wa ives compliance with its change of beneficiary procedure.” Id. at ¶ 18. The concurring opinion agreed with that aspect of the decision. Id. at ¶ 34-35. {¶ 22} The dissenting opinion in Kelly v. May Assocs. declined “to extend the law regarding beneficiaries under insurance contract s to an IRA account.” Id. at ¶ 37. Even applying the insurance-law analysis, however, the dissent disagreed that May Credit Union’s signature requirement on a change-of-beneficiary form operated solely to protect the company. Therefore, the credit union could not waive the contract requirements simply by interpleading 12

 the funds to the court. Id. Th e dissent factually distinguished Rindlaub , 175 Ohio St. 303, upon which the other judges relied. 7 And although the dissent recognized that Ohio law regarding life insurance has moved toward only requiring substantial compliance with policy provisions for a change of beneficiary, it concluded that Kelly did not even meet a substantial-compliance st andard. Id. at ¶ 44

. {¶ 23} The decision in Kelly v. May Assocs. does not deal with the distinction between a life insurance policy and an existing asset. Absent, too, is any analysis of R.C. 1709.09 and its implication. Moreover, with its varying opi nions on the bases for the decision, we decline to apply Kelly ’s holding here. We find that Wells Fa rgo’s change-of-beneficiary requirements control and because John did not comply with th em, he did not change the beneficiary before his death. Accordingly, the trial court was correct in granting summary judgment in favor of Cynthia Burchfield. {¶ 24} Even if we were to apply the life insurance line of cases, including Rindlaub , we would still conclude that the trial court correctly granted summary judgment. The record reflects that John called and e-ma iled his financial advi sor about changing beneficiaries. He also signed the change-of-beneficiary forms. Bo th of these actions demonstrate that, at some time, John did intend to change the beneficiar y. However, on the other hand, as Cynthia

7 Cynthia contends that the Ohio Supreme Court effectively overruled Rindlaub in Phillips v. Pelton (1984), 10 Ohio St.3d 52. We disagree. In Phillips , the Ohio Supreme Court recognized that “to effectuate a change of beneficiary the insured must ordinarily follow the procedure directed in th e policy.” Id. at 53. Rindlaub does not hold otherwise. It merely recognizes that an insurer may waive compliance with the procedure set forth in the policy. The actual issue in Phillips was “whether the terms of the separation agreement executed between appellant and her former spouse and incorporated into their di ssolution decree preclude appell ant’s participation in the proceeds of the former spouse’s life insurance notwithstanding the fact that appellant is the named beneficiary under the policy.” Id. at 53. Phillips concluded that the parties could agree to eliminate each other as beneficiaries, and this agreement would be given effect, even though no specific change of beneficiary was made in the insurance policies. Id. at 54. If anything, this reasoning supports the argument made by LeBlanc and Welch. 13

 notes, he never returned the form s, a fact that reasonably coul d support an inference that he changed his mind about naming new beneficiaries. That inferen ce is strengthened, at least somewhat, by a suicide note John left. Therein, he expressed deep and continuing love for Cynthia. It appears that a genuine issue of mate rial fact exists with regard to John’s intent. Consequently, for present purposes, we must conclude that he intended to change the beneficiary. But that conclu sion does not end the analysis. {¶ 25} The uncertainty that can surround a decedent’s intent with regard to a life insurance beneficiary is precisely why “substantial compliance” with a policy’s terms is required if the precise terms are not followed. Substantial compliance requires evidence “(1) that the insured definitely intended to change th e beneficiary; and (2) th at he did everything possible under the circ umstances to effect that change.” State Mut. Life Assur. Co. of Am. v. Holmes (Aug. 30, 1988), Franklin App. No. 88AP-377, citing Benton v. United Ins. Co. of Am. (1959), 110 Ohio App. 151. The second part of the test has been expresse d as an “attempt to effectuate the change by taking positive action that is equivalent to the action required by the policy provision, and amounts to doing everything the insured can do to make the change in accordance with the policy provision.” Life Ins. Co. of N. Am. v. Leeson (Apr. 15, 2002), S.D.Ohio No. 00-CV-1394, citing Aetna Life Ins. Co. v. Weatherford (C.A. 6, 1991), 924 F.2d 1057. {¶ 26} We determine that our decisi on here is not contrary to Rindlaub , which is distinguishable on its facts. That decision did not specifically apply the substantial-compliance test. However, the court’s reasoning was consistent with a substantial-compliance requirement. The insured in Rindlaub sent the insurer witnessed statements on July 2, 1946, 14

 clearly indicating his intention to cancel all pr evious designations of beneficiaries under the specified life insurance policy and named a new principal and rena med the contingent beneficiary. Approximately fi ve months later, the insured married the newly designated principal beneficiary, and they were married at the time of his death. The court reasoned that because there was “no proof of record that the insured received the insurer’s letter of July 16, 1946, * * * it is entirely reasonable to infer that he believed he had done all that was necessary to effectuate a change of beneficiary.” Rindlaub , 175 Ohio St. at 306. Although Rindlaub gave effect to the intent of the insured, it firs t determined that the in sured had done everything he reasonably could do to effectuate the change of beneficiary. The court then proceeded to find that the insured clearly expressed his intent to change his beneficiary from his former to his current wife. Thus, substantial compliance w ith the rules for a change of beneficiary was a part of the Rindlaub result. {¶ 27} In a case applying Tennessee’s rule of substantial compliance and federal common law on the subject, U.S. Sixth Circuit Court of Appeals held, similar to the case at bar, that the failure to return a change-of-beneficiary form does not satisfy the substantial-compliance requirement. See Magruder v. Northwestern Mut. Life Ins. (C.A.6, 1975), 512 F.2d 507. In Magruder , the insured properly completed a change-of-beneficiary form but did not mail it to the insurance company before he died more than six months later. Id. at 509. The court stated that he had not s ubstantially complied with the policy, as there was “no question that he had am ple opportunity to return the forms, or that he had the requisite physical and mental capacity to do s o.” Id. Likewise, John Burchfield did not return the form and did not substantially comply with the contract. The result is that there is 15

 no basis to effectuate his intent , regardless of how clearly expr essed it may have been. After examining the facts, we find the trial court accurately concluded that Burchfield did not change the beneficiary and that Cynthia Burchfield was entitled to judgment in her favor. {¶ 28} Finally, Cynthia raises an argument that John violated a temporary restraining order (“TRO”) by changing the beneficiary of hi s IRAs. This issue cannot be resolved in the context of summary judgment. John’s financ ial advisor, Aaron Michael, sent him the change-of-beneficiary forms after the two men spoke in late October 2009. Michael testified that he had dated the forms November 2, 2009, be fore sending them, b ecause he believed John would sign and return them by that time. Thereafter, on November 5, 2009, Cynthia served John with a divorce complaint and a TRO that prohi bited him from, inter a lia, transferring any accounts or any other interest in any asset. Because John ve ry well may have signed the change-of-beneficiary forms before being served with the TRO, it cannot be determined, as a matter of law, that he necessarily violated the TRO. Nevertheless, our preceding determination that the trial court was correct in granting summary judgment renders this issue

moot. Judgment affirmed.

. . . . . . . . . . . . . G RADY , P.J., and F ROELICH , J., concur.