SIMM v. AMERIPRISE FINANCIAL INC (2025)

Defendant, Jacqueline Cornett Simm, appeals a judgment of the district court granting a motion for summary judgment filed by Plaintiff, Adrian Michael Simm, Jr., individually and as the independent executor of the succession of James Timothy Simm, regarding the ownership of the proceeds of an individual retirement account (“IRA”) that belonged to the deceased. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

This case involves a dispute between the estate of the decedent (“James”) and his former spouse (“Jacqueline”). James and Jacqueline were married for nearly 30 years, but their marriage ended in divorce pursuant to a judgment of divorce dated May 20, 2015. James and Jacqueline subsequently entered into a partition and division of community property agreement (“the partition agreement”), which was signed by Jacqueline on December 18, 2018, and by James on January 3, 2019. Pertinent herein, the partition agreement provided:

JAMES ․ does hereby set over, grant, bargain, exchange, assign, deliver, convey[,] and transfer unto JACQUELINE ․ all of his right[,] title[,] and interest that he now has or might have, including in and to the following described properties, to-wit:

* * *

2. Any and all financial accounts in the name of JACQUELINE ․ including[,] but not limited to the accounts divided by the parties prior to entering into this agreement, namely:

a. Ameriprise Achiever Circle Elite acct. no. xxxx 3 001

b. RiverSource Variable University Life Insurance acct. no. xxxx xxxx 7 004

c. Ameriprise Brokerage Account, acct. no. xxxx 1 133

d. Columbia Funds acct. no. xxxx xxx 270

* * *

5. One-half of the RiverSource Retirement Advisor Variable Annuity in the name of JAMES ․ account# 0930066212075004[.]

* * *

JACQUELINE ․ does hereby set over, grant, bargain, exchange, assign, deliver, convey[,] and transfer unto JAMES ․ all of her right[,] title[,] and interest that she now has or might have in and to the following described properties, to-wit:

* * *

2. Any and all financial accounts in the name of JAMES ․ including[,] but not limited to the accounts divided by the parties prior to entering into this agreement, namely:

a. Ameriprise Achiever Circle Elite acct. no. xxxx 3 001

b. RiverSource Variable University Life Insurance acct. no. xxxx xxxx 7 004

c. Ameriprise Brokerage Account, acct. no. xxxx xxxx 1 133

d. Columbia Funds acct. no. xxxx xxx 270

* * *

5. One-half of the RiverSource Retirement Advisor Variable Annuity in the name of JAMES ․ account # 0930066212075004[.]

Shortly after the divorce in May 2015, James executed a last will and testament, which directed that everything of his shall be left to his niece and nephews. The will also appointed Adrian M. Simm, Jr. as the executor of James's estate. James later executed an oligraphic codicil, in which he bequeathed his home to Jacqueline. James passed away on September 20, 2019, leaving no surviving spouse and no children.

During the administration of the James's estate, Adrian learned that Jacqueline was purportedly listed as and/or considered to be the beneficiary of several investment accounts (“Accounts 1, 2, 3, and 5”) James held through Ameriprise Financial, Inc. and RiverSource Life Insurance Company (a subsidiary of Ameriprise) at the time of his death.¹ Adrian, in his individual capacity and in his capacity as independent executor of James's estate (“the Estate”), subsequently filed a lawsuit on December 6, 2019, against Ameriprise, RiverSource, and Jacqueline to restrain Ameriprise from distributing the proceeds of the disputed IRA and annuity accounts and to obtain a judicial declaration that the Estate is the lawful beneficiary of the disputed accounts.²

Later, Jacqueline and the Estate filed cross-motions for summary judgment seeking a judicial determination of their respective beneficiary rights to the assets of Accounts 1, 2, 3, and 5. See Simm v. Ameriprise Financial, Inc., 2021-1215 (La. App. 1 Cir. 12/22/22), 360 So.3d 498, 501-02 (per curiam) (“Simm I”). On April 26, 2021, the district court held hearings on the pending motions for summary judgment. The district court signed a judgment dated May 3, 2021, which granted Jacqueline's motion; declared Jacqueline to be the beneficiary to the assets of Accounts 1, 2, 3, and 5; denied the Estate's motions ³ ; and dismissed all of the Estate's claims with prejudice. The Estate then appealed the May 3, 2021 judgment. See generally Simm I, 360 So.3d 498.

In a per curiam opinion, a five-judge panel of this court reversed the portion of the district court's May 3, 2021 judgment granting summary judgment in Jacqueline's favor as to Accounts 1, 2, and 3. The panel further granted the Estate's motion regarding Accounts 1, 2, and 3 and declared the Estate was the legal and proper beneficiary to the proceeds of Accounts 1, 2, and 3. See Simm I, 360 So.3d at 504. As to Account 5, however, a majority of the panel determined that neither the Estate nor Jacqueline was entitled to summary judgment and remanded the matter for further proceedings. See Simm I, 360 So.3d at 504. The Simm I court was unable to reach a consensus as to its reasoning for reaching these conclusions. See Simm I, 360 So.3d at 499.

On remand, the Estate filed a second motion for summary judgment regarding Account 5 on June 1, 2023 (“the Estate's 2023 motion”). The Estate re-urged two arguments asserted in its original motion regarding Account 5: (1) that Jacqueline was not specifically designated by name as the beneficiary to Account 5; and (2) that the partition agreement divested Jacqueline of any beneficiary interest she may have had in Account 5. Additionally, the Estate argued that the beneficiary forms for the accounts used to fund Account 5 were invalidated by operation of Minnesota law upon the divorce of James and Jacqueline, and as a result, Account 5 did not have an “Existing IRA Plan Beneficiary” to apply, as directed by the Account 5 beneficiary form. Therefore, the Estate asserted that, per the Ameriprise policy documents, the beneficiary is deemed to be the decedent's estate.

In support of its motion, the Estate attached the affidavit of Jamie F. Gontarek, who is counsel for the Estate, and the March 30, 2021 affidavit of Charles Lee Simmons, the Ameriprise financial advisor who assisted James in opening Account 5. The Simmons affidavit confirms that Account 5 was opened by James and funded with transfers of assets from two separate IRAs, both of which designated “Jacqueline Simm” as beneficiary. Simmons also attested that James advised him that James was designating his ex-spouse, Jacqueline, as the beneficiary of Account 5 and confirmed that James wished to keep Jacqueline as the designated beneficiary on all of James's accounts held with Ameriprise. The client notes taken by Simmons from a June 12, 2019 telephone call between James and him were attached as an exhibit to the Simmons affidavit. Those notes state that James “has a Will leaving everything to nephews; his [beneficiary] on [life insurance] and retirement plans leave everything to his ex-wife Jackie[,] which is fine with him at this time[.]”

The Gontarek affidavit authenticated Ameriprise's responses to the Estate's request for production of documents and the judgment of divorce, which were produced during the course of discovery. Several Ameriprise client and custodian agreements were attached to Ameriprise's discovery responses. The first, the opening documents for Account 5 (collectively referred to as “the Account 5 Application”), identified the source of funds for Account 5 as “Replacement/Exchange” and the beneficiary designation for Account 5 as “Apply Existing IRA Plan Beneficiary.” The Account 5 Application also reflects that James's marital status was “Divorced.” The Account 5 Application states, “If the [Existing IRA] Plan [Beneficiary] does not exist, Beneficiary will be defaulted to the default Beneficiary Provision as Outlined in ‘Your [G]uide to IRAs-IRA Disclosure.’ ” The Account 5 Application further provides, in pertinent part:

I agree that this acknowledgement and beneficiary designation shall be binding upon my heirs, legatees, executors, administrators, personal representatives, assigns[,] and beneficiaries.

* * *

I appoint [Ameriprise] as custodian of my IRA and understand that the Individual Retirement Custodial Account Agreement in “Your Guide to IRAs”, and this application comprise my custodial agreement with [Ameriprise].

* * *

I acknowledge that I have received and read the applicable “Your Guide to IRAs” and the Custodial Agreement included therein, and agree to abide by the terms and conditions of each.

(Emphasis in original).

Next, the “Ameriprise Brokerage Client Agreement,” which governs the terms and conditions of Brokerage IRAs held with Ameriprise, states, in pertinent part:

This Agreement contains Ameriprise Financial Services, Inc. Account Agreements and Disclosures required to open a brokerage account.

* * *

This Agreement and its terms, as modified by us from time to time, shall be binding upon your heirs, successors, executors, beneficiaries, administrators[,] and assigns.

* * *

THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW OR CONFLICTS OF LAW PRINCIPLES, UNLESS SUPERSEDED BY FEDERAL LAW OR STATUTE; AND SHALL COVER INDIVIDUALLY AND COLLECTIVELY ALL BROKERAGE ACCOUNTS WHICH YOU MAY OPEN OR REOPEN WITH US[.]

Lastly, “Your Guide to IRAs” states, in relevant part 4:

Part 2. IRA custodial agreement

The custodial agreement is the legal document governing your custodial IRA from Ameriprise Financial.

* * *

(4) Beneficiaries

* * *

(e) If all such designated beneficiaries have predeceased the Depositor[5], or if at the time of the Depositor's death there is no designation of beneficiary then in effect, the beneficiary shall be deemed to be the Depositor's surviving spouse, if any. If there is no surviving spouse, then the beneficiary shall be deemed to be the Depositor's estate.

* * *

(12) Governing law

This Agreement and the duties and obligations of [the] Custodian in connection with the Account, shall be construed, administered[,] and enforced according to the laws of the State of Minnesota, except as superseded by federal law or statute.

* * *

(16) Establishment of IRA

Depositor's IRA will be established pursuant to the terms of this Agreement when Custodian accepts Depositor's first deposit.

The Estate asserted that these documents, when read together, mandate judgment in its favor.

In opposition, Jacqueline first argued that the Estate's 2023 motion should be denied because it is identical to the Estate's previous motion regarding Account 5, which this court denied in Simm I. Next, Jacqueline argued that the Account 5 beneficiary designation is not invalidated under Minnesota law because (1) the parties were not married when James opened Account 5; (2) the invalidation of the beneficiary designation on Accounts 1, 2, and 3 does not have any bearing on the Account 5 beneficiary designation; and (3) James's post-divorce designation of Jacqueline as his beneficiary constitutes a renaming, redesignation, or reinstatement of Jacqueline as the beneficiary of Account 5. According to Jacqueline, “There is no doubt that [James] was designating [Jacqueline] when he said ‘Apply Existing IRA Plan Beneficiary’, because [Jacqueline] was not only the beneficiary of the two accounts that were used to fund Account 5, but she was the existing plan beneficiary of every account.” (Emphasis in original). Lastly, Jacqueline argued that the partition agreement does not have any effect on Account 5 because Account 5 was created after the partition agreement and is therefore not a community asset governed by the partition.

Jacqueline attached the following documents to her opposition: (1) the affidavit of Stephen D. Marx, counsel for Jacqueline, who authenticated all attached Ameriprise client documents as produced during discovery ⁶ ; (2) the Estate's original petition; (3) the judgment of divorce and partial community property settlement regarding the marital home; and (4) the February 24, 2021 affidavit of Simmons.⁷

The district court held a hearing on the Estate's 2023 motion on October 11, 2023. At the conclusion of the hearing, the district court took the matter under advisement and requested that counsel for the parties return to court on November 8, 2023, for its ruling. On that date, the district court granted the Estate's 2023 motion, stating, in pertinent part:

The motion and argument as presented by [the Estate] urge this court to find that there exist[s] no genuine issue of material fact and that the [Estate] is entitled to judgment as a matter of law. The court[,] having considered the pleadings filed in connection therewith, the argument of counsel, and applicable statutory provisions, grants the motion for summary judgment as prayed for.

The court finds that the evidence supports that James opened Account 5 on or about June 7th of 2019, which was after James and Jacqueline were divorced. The beneficiary of Account 5 is [stated] as applying existing IRA plan beneficiary. The account agreement states if the plan does not exist[,] the beneficiary will be defaulted to the default beneficiary provision as outlined in your guide to [IRAs], IRA disclosure.

Your guide to [IRAs] states that if, at the time of the depository step there is no designation of beneficiary then in effect, the beneficiary shall be deemed to be the depositor's surviving spouse, if any. If there is no surviving spouse, then the beneficiary shall be deemed to be depositor's estate.

James did not have a surviving spouse at the time of his death. James and Jacqueline divorced on May 20, 2015, and James never remarried before his death on September 20, 2019. Therefore, this court finds that the beneficiary is deemed to be the estate of the decedent under the account agreement.

Thereafter, the district court signed a “Ruling on Motion for Summary Judgment,” which stated, in pertinent part:

The Court finds that the evidence supports that James opened Account 5 on June 7, 2019, which was after James and Jacqueline were divorced. The beneficiary of Account 5 is listed as, “Applying Existing IRA Plan Beneficiary.” The account agreement states, “If the Plan does not exist, Beneficiary will be defaulted to the default Beneficiary Provision as Outlined in ‘Your guide to IRAs-IRA Disclosure.[’ ”] “Your Guide to IRAs” states that “[i]f at the time of the Depositor's death there is no designation of beneficiary then in effect, the beneficiary shall be deemed to be the Depositor's surviving spouse, if any. If there is no surviving spouse, then the beneficiary shall be deemed to be the Depositor's estate.” James did not have a surviving spouse at the time of his death. James and Jacqueline divorced on May 20, 2015, and James never remarried before his death on September 20, 2019. Therefore, the court[ ] finds that the beneficiary is deemed to be James’[s] estate under the account agreement.

On November 30, 2023, the district court signed a judgment granting the Estate's 2023 motion and declaring the Estate to be the beneficiary of the assets held in Account 5. It is from this judgment Jacqueline now appeals.⁸

SUMMARY JUDGMENT 9

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Trombettas v. Williams, 2023-0250 (La. App. 1 Cir. 9/15/23), 372 So.3d 360, 366, writ denied, 2023-01532 (La. 1/17/24), 377 So.3d 249. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Trombettas, 372 So.3d at 366.

The initial burden of proof is on the party filing the motion for summary judgment. See La. C.C.P. art. 966(D)(1). The mover's supporting documentary evidence must prove the essential facts necessary to carry its burden. See La. C.C.P. art. 966(A)(3). Thereafter, summary judgment shall be granted unless the adverse party produces factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See Trombettas, 372 So.3d at 365 (citing La. C.C.P. art. 966(D)(1)).

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. La. C.C.P. art. 966(D)(2). In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether there is a genuine issue of material fact. Trombettas, 372 So.3d at 366. Summary judgment is seldom appropriate for determinations based on the subjective facts of intent, motive, malice, good faith, or knowledge. These subjective facts call for credibility evaluations and the weighing of testimony, and a district court cannot make credibility decisions on a motion for summary judgment. Trombettas, 372 So.3d at 366.

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the district court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Trombettas, 372 So. 3d at 365.

CHOICE OF LAW

When determining whether summary judgment is appropriate, the applicable substantive law must first be determined. See Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202 (La. App. 1 Cir. 2/12/10), 35 So.3d 334, 340 n.1, writ denied, 2010-0715 (La. 6/4/10), 38 So.3d 302 (“A judgment granting or denying summary judgment is necessarily based upon the initial determination of the substantive law applicable to the issues, as it is only in the context of that applicable substantive law that any issues of material fact can be ascertained.”); Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288 (“Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case.”). In this case, the parties present competing arguments as to whether Minnesota law, namely Minn. Stat. § 524.2-804, operates to invalidate the Account 5 beneficiary form. Determining the proper choice-of-law to be applied to an issue is a question of law, which this court reviews de novo. See Ross and Wallace Paper Products, Inc. v. Team Logistics, Inc., 2019-0196 (La. App. 1 Cir. 7/8/20), 3 08 So.3d 346, 352, writ denied, 2020-00989 (La. 11/4/20), 303 So.3d 641.

The Ameriprise Brokerage Client Agreement between James and Ameriprise contains a choice-of-law provision expressly providing as follows:

THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW OR CONFLICTS OF LAW PRINCIPLES, UNLESS SUPERSEDED BY FEDERAL LAW OR STATUTE; AND SHALL COVER INDIVIDUALLY AND COLLECTIVELY ALL BROKERAGE ACCOUNTS WHICH YOU MAY OPEN OR REOPEN WITH US[.]

The Brokerage Client Agreement also provides that “[t]his Agreement, along with the Application(s) and any other documents you have signed, constitutes the entire Agreement between you and us.” It further provided that “[t]his Agreement and its terms, as modified by us from time to time shall be binding upon your heirs, successors, executors, beneficiaries, administrators[,] and assigns.” Additionally, in the account applications signed by James, he acknowledged that he received and agreed to be bound by the terms of “Your Guide to IRAs” and “Your Guide to Roth IRAs.” Those guides provided that, with respect to the “Governing Law,” “[t]his Agreement and the duties and obligations of [Ameriprise] shall be construed, administered[,] and enforced according to the laws of the State of Minnesota, except as superseded by federal law or statute.”

Under Louisiana law, it is generally acceptable for contracting parties to make a choice-of-law that will govern the agreement between them. O'Hara v. Globus Medical, Inc., 2014-1436 (La. App. 1 Cir. 8/12/15), 181 So.3d 69, 80, writ denied, 2015-1944 (La. 11/30/15), 182 So.3d 939. That choice-of-law will be given effect, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under La. C.C. art. 3537.¹⁰ O'Hara, 181 So.3d at 80 (citing La. C.C. art. 3540). The Minnesota law that the Estate maintains is applicable is Minn. Stat. § 524.2-804, which provides, in pertinent part:

Subdivision 1. Revocation upon dissolution. Except as provided by the express terms of a governing instrument ․ executed prior to the dissolution or annulment of an individual's marriage, a court order, a contract relating to the division of the marital property made between individuals before or after their marriage, dissolution, or annulment, or a plan document governing a qualified or nonqualified retirement plan, the dissolution or annulment of a marriage revokes any revocable:

(1) disposition, beneficiary designation, or appointment of property made by an individual to the individual's former spouse in a governing instrument[.]

* * *

Subd. 2. Effect of revocation. Provisions of a governing instrument are given effect as if the former spouse died immediately before the dissolution or annulment.

In Sveen v. Melin, 584 U.S. 811, 138 S.Ct. 1815, 201 L.Ed.2d 180 (2018), the United States Supreme Court addressed whether this particular statute, Minn. Stat. § 524.2-804, violated the Contracts Clause of the Constitution of the United States, and in doing so, it analyzed the purpose and underlying public policy considerations of the statute. The Supreme Court noted that Minn. Stat. § 524.2-804 provided a default rule for divorce that if one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation on the theory that the spouse would want that result, i.e., he or she would not want a former spouse to benefit from his or her insurance policy or other similar asset. Nevertheless, if the spouse does not want that result, he or she may rename the ex-spouse as beneficiary. See Sveen, 584 U.S. at 815-17.

In analyzing the public policy behind the statute, the Supreme Court noted that changes in society and divorce rates led a majority of states to enact laws governing the revocation of wills or testamentary bequests on divorce, which were based on the prevailing idea that “the average Joe does not want his ex inheriting what he leaves behind.” Sveen, 584 U.S. at 814-15. The Court acknowledged that, over time, many states extended their revocation-on-divorce statutes from “wills to ‘will substitutes’ such as revocable trusts, pension accounts, and life insurance policies.” Sveen, 584 U.S. at 815. The Court stated that, in doing so, “[t]he underlying idea was that the typical decedent would no more want his former spouse to benefit from his pension plan or life insurance than to inherit under his will”; that “a former spouse ․ was not likely to be [the] desired recipient”; and that “a decedent's failure to change his beneficiary probably resulted from ‘inattention,’ not ‘intention.’ ” Sveen, 584 U.S. at 815. Accordingly, the Supreme Court found that Minn. Stat. § 524.2-804 furthered, rather than undermined, the intent of the contracting party with respect to a beneficiary.

The Supreme Court also found that the policyholder (decedent) could “reverse the effect of the Minnesota statute with the stroke of a pen.” Sveen, 584 U.S. at 822. The Supreme Court explained that “[t]he law puts in place a presumption about what [a spouse] wants after divorcing,” “[b]ut if the presumption is wrong, the [spouse] may overthrow it․ by the simple act of sending a change-of-beneficiary form ․ [or] agreeing] to a divorce settlement continuing the ex-spouse's beneficiary status,” which “restores [the] former spouse to the position [he or] she held before the divorce—and in so doing, cancels the state law's operation.” Sveen, 584 U.S. at 822.

Given the public policy considerations of Minn. Stat. § 524.2-804, as enunciated by the Sveen court, we do not believe that the choice-of-law provision in the controlling agreements herein contravenes the public policy of Louisiana. To the contrary, Louisiana's public policy is furthered by upholding the choice-of-law provision in the account agreements, as Louisiana recently enacted a law very similar to Minn. Stat. § 524.2-804.¹¹ Therefore, the choice-of-law in the account agreements should be applied to determine its enforcement and Ameriprise's duties and obligations under the agreement, including to whom the proceeds from Account 5 should be paid.

APPLICABILITY OF MINN. STAT. § 524.2-804

It is undisputed that Account 5 was opened after the divorce of James and Jacqueline. Therefore, any beneficiary designation made by James in favor of Jacqueline post-divorce would not be revoked “by dissolution of marriage.” Nevertheless, the Estate argues Minn. Stat. § 524.2-804 remains relevant to Account 5. According to the Estate, upon Jacqueline's divorce from James in 2015, the beneficiary designations naming Jacqueline as the surviving spouse beneficiary to the accounts used to fund Account 5 (collectively referred to as “the funding accounts”) were automatically revoked by operation of law pursuant to Minn. Stat. § 524.2-804. The legal effect of such revocations was that the beneficiary designations for the funding accounts were to be treated as if Jacqueline died immediately prior to her divorce from James. See Minn. Stat. § 524.2-804, Subd. 2.

“Your Guide to IRAs” gives explicit direction in the event the beneficiary predeceases the owner of the account: “If all such designated beneficiaries have predeceased the Depositor, or if at the time of the Depositor's death there is no designation of beneficiary then in effect, the beneficiary shall be deemed to be the Depositor's surviving spouse, if any.” However, “[i]f there is no surviving spouse, then the beneficiary shall be deemed to be the Depositor's estate.” The Estate maintains that since Jacqueline must be treated as having predeceased James per Minn. Stat. § 524.2-804, Subd. 2, “the beneficiary [for the funding accounts] shall be deemed to be the Depositor's surviving spouse, if any.” James and Jacqueline divorced on May 20, 2015, and James never remarried before his death on September 20, 2019. Since James did not have a surviving spouse at the time of his death, “Your Guide to IRAs” deems James's estate to be the beneficiary of the funding accounts.

The Estate then argues that, as a result of Minn. Stat. § 524.2-804 invalidating the funding accounts’ beneficiary designations, there was no “Existing IRA Plan Beneficiary” to apply to Account 5. In such a case, the Account 5 Application directs that the “Beneficiary will be defaulted to the default Beneficiary Provision as Outlined in ‘Your [G]uide to IRAs-IRA Disclosure.’ ” Again, applying the terms of “Your Guide to IRAs,” the Estate argues the beneficiary would become the surviving spouse, or if there is no surviving spouse, the decedent's estate. Accordingly, the Estate contends there is no genuine issue of material fact that the beneficiary for Account 5 is deemed to be the Estate.

In order to establish that the Account 5 beneficiary designation was invalidated per Minn. Stat. § 524.2-804, it was incumbent upon the Estate to first demonstrate that the beneficiary forms for the funding accounts were invalidated. The Estate claims that it is undisputed fact that (1) Account 5 was funded by Account 1 (the beneficiary of which is the Estate per Simm I) and an SEP IRA (that was not a disputed account in this litigation); and (2) both of those accounts were opened during the marriage. However, argument of counsel and briefs are not sufficient to raise an issue of material fact. U.S. Bank National Association as Trustee for RFMSI 2005S7 v. Dumas, 2022-0604 (La. App. 1 Cir. 4/3/23), 363 So.3d 1232, 1235, writ denied, 2023-00733 (La. 9/26/23), 370 So.3d 478. Documentary support of an alleged undisputed material fact is necessary for the mover to be entitled to summary judgment. See Mercadel v. State Through Department of Public Safety & Corrections, 2018-0415 (La. App. 1 Cir. 5/15/19), 2019 WL 2234404, *3-4 (unpublished).

The Estate cites the March 30, 2021 Simmons affidavit and his attached notes as evidentiary support. The Simmons affidavit establishes that Account 5 was funded by two unnamed IRA accounts naming Jacqueline as the beneficiary, and his client notes reference an “IRA Brok holding” and a “SEP IRA Brok” that funded Account 5. However, the only facts ascertainable from these exhibits are that Account 5 was funded by an “IRA Brok holding” and a “SEP IRA Brok” and that both accounts named Jacqueline as a beneficiary. These exhibits do not establish that the “IRA Brok holding” is, in fact, Account 1 (i.e., it is not identified by account number). Further, the exhibits do not establish when the “IRA Brok holding” and the “SEP IRA Brok” were opened. As previously stated, any beneficiary designation made by James in favor of Jacqueline post-divorce would not be revoked “by dissolution of marriage.” For these reasons, we find the Estate failed to establish the Account 5 beneficiary form was invalidated by operation of Minn. Stat. § 524.2-804.

EFFECT OF THE PARTITION AGREEMENT

We also find the partition agreement has no effect on the beneficiary form for Account 5. The undisputed material facts establish that Account 5 was opened on June 7, 2019, after the parties were divorced and after they executed the partition agreement; therefore, Account 5 was not a community asset that could be partitioned or included in that agreement. Rather, Account 5 was James's separate property.¹² See La. C.C. art. 2335.

There is no provision in the law that prevents James from naming his former spouse as the beneficiary of his separate property. To the contrary, La. R.S. 9:2449(A) requires any benefits payable by reason of death from an IRA to be paid as provided in the IRA agreement to the designated beneficiary of the account. Moreover, Jacqueline could not have waived her beneficiary right to Account 5 at the time of the partition agreement because it is impossible to make a knowing and intentional waiver of a right in something that does not yet exist. See Forvendel v. State Farm Mutual Automobile Insurance Company, 2017-2074 (La. 6/27/18), 2 51 So.3d 3 62, 364 (“Waiver occurs when there is an existing right, a knowledge of its existence[,] and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.”).

DECREE

For the reasons set forth herein, we find the Estate failed to carry its initial burden of proof on summary judgment. Therefore, the district court's November 30, 2023 judgment granting summary judgment in favor of Adrian Michael Simm, Jr., individually and as the independent executor of the succession of James Timothy Simm, and declaring the estate of James Timothy Simm to be the beneficiary of the assets held in Account 5 is hereby reversed. This matter is remanded to the district court for further proceedings.

All costs of this appeal are assessed to appellee, Adrian Michael Simm, Jr., individually and as the independent executor of the succession of James Timothy Simm.

JUDGMENT REVERSED AND REMANDED.

I respectfully dissent for the reasons expressed in my partial concurrence and partial dissent in Simm v. Ameriprise Financial, Inc., 2021-1215 (La. App. 1 Cir. 12/22/22), 360 So.3d 498, 513 (“Simm I”).

Regarding the choice-of-law issue, I would find that Louisiana law governs the disposition of the funds in Account 5. Louisiana Civil Code article 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

Thus, in reviewing a choice-of-law issue, a court's first task is to determine which jurisdictions have pertinent contacts to the dispute. To determine if a jurisdiction has pertinent contacts to the dispute, we must consider the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties. See La. C.C. art. 3537.

Account 5 was formed in Louisiana. Both parties to this appeal are domiciled in Louisiana and the decedent was domiciled in Louisiana when he died. Accordingly, Minnesota does not have an interest in its laws being applied to a dispute between Adrian, individually and as the Independent Executor of James's Succession, and Jacqueline. However, Louisiana does have an interest in its laws being applied since it has meaningful contacts to the dispute. See La. C.C. art. 3537.

Further, the “Ameriprise Brokerage Client Agreement” (and its choice-of-law clause) is binding between (1) James and Ameriprise, and (2) James’ heirs, successors, executors, beneficiaries, administrators and assigns and Ameriprise. The agreement is not binding between Adrian, individually and as the Independent Executor of James's Succession, and Jacqueline. Accordingly, although Minnesota law would apply to a dispute with Ameriprise pursuant to the choice-of-law clause, it does not apply to the instant dispute between Adrian and Jacqueline.

As to the issue of whether summary judgment was appropriate, I would affirm the trial court's grant of summary judgment in favor of Adrian. Louisiana law mandates that benefits of IRAs be paid to the designated beneficiary according to the account agreement. Minvielle v. Dupuy, 93-1835 (La. App. 1 Cir. 6/24/94); 638 So.2d 1186, 1188; see also La. R.S. 9:2449. Although Charles Lee Simmons (the Ameriprise financial advisor who assisted James in opening Account 5) attested via affidavit that James wanted Jacqueline to be the beneficiary of Account 5, this assertion is not sufficient to name Jacqueline as the beneficiary to that account.

Relevantly, James opened Account 5 on June 7, 2019, after he and Jacqueline were divorced. The beneficiary of Account 5 is listed as, “Apply Existing IRA Plan Beneficiary.” The account agreement states, “If the Plan does not exist, Beneficiary will be defaulted to the default Beneficiary Provision as Outlined in ‘Your guide to IRAs-IRA Disclosure.’ ” “Your Guide to IRAs” pertinently states that “[i]f at the time of the Depositor's death there is no designation of beneficiary then in effect, the beneficiary shall be deemed to be the Depositor's surviving spouse, if any. If there is no surviving spouse, then the beneficiary shall be deemed to be the Depositor's estate.”

James did not have a surviving spouse at the time of his death. James and Jacqueline divorced on May 20, 2015, and James never remarried. I would find that since James did not have a surviving spouse at the time of his death, the beneficiary of Account 5 is deemed to be James’ estate under the account agreement. Accordingly, I disagree with the finding that Adrian was not entitled to summary judgment in his favor declaring the estate of James to be the beneficiary of Account 5.

I respectfully dissent from the majority's opinion. I find that the contract between the decedent/depositor, James Timothy Simm, and Ameriprise Financial Services, Inc., establishing Account 5 contains clear and unambiguous instruction in determining a default beneficiary. In instances when a beneficiary is not named, and the depositor does not have a surviving spouse at the time of depositor's death, then the depositor's estate becomes the beneficiary. In the case of Account 5, there is no actual named beneficiary, as the only beneficiary listed is “Apply Existing IRA Plan Beneficiary.” Although James’ ex-wife, Jacqueline Cornett Simm, was named as beneficiary on all of his other accounts with Ameriprise, this court previously found that following their divorce, James’ estate was the rightful beneficiary to the Ameriprise accounts opened during the marriage. See Simm v. Ameriprise Financial, Inc., 2021-1215 (La. App. 1st Cir. 12/22/22), 360 So.3d 498, 504 (per curiam). Thus, whether looking to the “Existing IRA Plan Beneficiary,” or referencing the default beneficiary provisions, the same conclusion is reached, which is that James’ estate is the rightful beneficiary of Account 5. Accordingly, I would affirm the trial court's judgment granting summary judgment in favor of Adrian M. Simm, Jr., individually and as the Independent Executor of the Succession of Janies Timothy Simm, and naming the Estate of James Timothy Simm the proper beneficiary of Account 5 (Ameriprise Traditional IRA account #5514 9 133).

FOOTNOTES

1.   The accounts are more specifically described as follows:Account 1: Ameriprise Brokerage Traditional IRA ending in account #0469 1 133;Account 2: Ameriprise Brokerage Roth IRA ending in account #2971 2 133;Account 3: RiverSource Variable Annuity ending in account #1207 5 004; andAccount 5: Ameriprise Traditional IRA ending in account #5514 9 133.Account 4, a life insurance policy, was also originally at issue in this litigation. However, the Estate voluntarily dismissed its claims related to Account 4 pursuant to a judgment signed on April 30, 2021.

2.   Adrian voluntarily dismissed his claims against Ameriprise Financial Services, Inc. and RiverSource, and the claims against Ameriprise Financial, Inc. were dismissed based on lack of personal jurisdiction. Simm I, 360 So.3d at 501. Jacqueline is the only remaining defendant.

3.   The Estate filed two separate motions for summary judgment: one pertaining to Accounts 1, 2, and 3, and a second pertaining to Account 5. See Simm I, 360 So.3d at 501.

4.   This “guide” applies to traditional, rollover, and simplified employee pension (“SEP”) IRAs. “Your Guide to Roth IRAs,” which the Estate also attached as evidence, contains nearly identical provisions concerning beneficiaries. For the sake of brevity, those provisions are not replicated here.

5.   “Depositor” is defined by “Your Guide to IRAs” as “the individual who has established the Account and has agreed to the terms of this Agreement.”

6.   Most of these documents are duplicates of those produced in support of the Estate's 2023 motion. One document of note is an “Information Disclosure Authorization Form” in which James authorized Ameriprise to release “nonpublic personal information held at Ameriprise” to “Jackie,” his “former spouse.”

7.   The February 24, 2021 Simmons affidavit is virtually identical to the March 30, 2021 Simmons affidavit attached to the Estate's 2023 motion. Both of the Simmons affidavits were attached to Jacqueline's motion for summary judgment at issue in Simm I. See Simm I, 360 So.3d at 502. The Estate objected to the Simmons affidavits in Simm I. See Simm I, 360 So.3d at 511 (Welch, J. concurring), 515 (Theriot, J. concurring). However, the Estate did not object to the February 24, 2021 Simmons affidavit attached to Jacqueline's opposition to the Estate's 2023 motion.Louisiana Code of Civil Procedure article 966 was amended by 2023 La. Acts No. 317, § 1 (eff. Aug. 1, 2023), and 2023 La. Acts No. 368, § 1 (eff. Aug. 1, 2023). Act 317 amended La. C.C.P. art. 966(D)(2), which currently reads, in pertinent part:The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.In contrast, at the time the Estate filed its 2023 motion, La. C.C.P. art. 966(D)(2) provided, “The court ․ shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.” (Emphasis added).This court has determined that the 2023 amendments to La. C.C.P. art. 966 are substantive and cannot be applied retroactively. See McKay v. Hospital Service District No. 1 of Tangipahoa Parish, 2023-1244 (La. App. 1 Cir. 10/11/24), 405 So.3d 869, 872 n.2 (citing La. C.C.P. art. 966, Comments—2023, Comment (f)). In cases where motions for summary judgment have been filed after the August 1, 2023 effective date, this court applies the version of Article 966 in effect on the date the motions for summary judgment were “submitted and heard.” See McKay, 405 So.3d at 872 n.2.Here, the Estate filed its 2023 motion on June 1, 2023, prior to the August 1, 2023 effective date of Act 317. Jacqueline filed her opposition to the Estate's 2023 motion on September 26, 2023, and the hearing on the Estate's 2023 motion was held on October 11, 2023, after the August 1, 2023 effective date of Act 317. Ultimately, however, when the Estate filed its 2023 motion on June 1, 2023, Article 966(D)(2) mandated the court to consider any documents to which no objection was made, and any objection to a document was required to be raised in a timely filed opposition or reply memorandum. Although Article 966 was amended pursuant to Act 317, those amendments are substantive and cannot be applied retroactively. Thus, we must apply the prior version of Article 966 that was in effect on June 1, 2023, when the Estate filed its 2023 motion. See McKay, 405 So.3d at 872 n.2. When applying that version of Article 966, we are mandated to consider the Simmons affidavits since the Estate failed to object to them in its reply memorandum to Jacqueline's opposition to the Estate's 2023 motion.

8.   Notice of signing of judgment was issued on December 18, 2023. Jacqueline filed a timely motion for devolutive appeal on December 27, 2023. The district court signed an order granting Jacqueline a devolutive appeal on January 3, 2024.The district court designated the record on appeal upon Jacqueline's motion. The Estate's motions and Jacqueline's cross-motion for summary judgment previously adjudicated in Simm I were not part of this designated record.

10.   Louisiana Civil Code article 3537 states:Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

11.   Louisiana Revised Statutes 9:2449.1, added by La. Acts 2024, No. 94, § 1 (eff. Aug. 1, 2024), states, in pertinent part:A. A divorce of an individual from the individual's spouse revokes any benefit payable to the former spouse by reason of the individual's death under any pension, profit-sharing, retirement, or similar benefit plan, provided that the divorce occurs after the beneficiary is designated, the parties remained divorced from each other at the time of death, and no judgment or property-settlement agreement expressly provides otherwise. If revocation occurs, the proceeds of the plan are payable as if the former spouse had predeceased the decedentSee also La. R.S. 22:911.1 (providing for revocation of beneficiary designation in life insurance and annuity contracts upon divorce). Even prior to the enactment of La. R.S. 9:2449.1, Louisiana had established a public policy with respect to beneficiaries of IRAs: beneficiaries of IRAs are included in the exceptions to the general rule that property owned by a decedent at death must pass to heirs via succession. See La. R.S. 9:2449 and La. R.S. 22:912(B); Succession of Angus, 54,180 (La. App. 2 Cir. 1/12/22), 333 So.3d 555, 560.

12.   To the extent the Estate argues that the funding accounts were community assets subject to the partition agreement, we note, as previously stated, the Estate failed to establish the identity of the funding accounts to support such an argument.

EDWARDS, J.

Fields, J. dissents and assigns reasons. Hester, J. concurs.