Is a touch spell's charge sufficient to hit an incorporeal creature?

Question

Abel wants to affect a shadow (MM 221-2) with the 3rd-level Clr spell spark of life [necro] (SpC 196). The shadow has the subtype incorporeal, and the spell spark of life is Range: Touch and doesn't deal damage.

While holding the charge from the spell spark of life Abel rolls high enough that his melee touch attack versus the shadow would be successful. What happens next?

1. He hits! The shadow makes a Willpower saving throw. Because the spell spark of life is a spell--no matter its delivery method--and the spell doesn't deal damage, the shadow's incorporeal subtype's 50% immunity to corporeal damage sources doesn't affect the spell.
2. He may hit. The DM checks the shadow's 50% immunity to corporeal damage sources amd, if Abel successfully overcomes that, then the shadow makes a Willpower saving throw. Because the attack is magic yet delivered by a corporeal source, the shadow's incorporeal subtype's 50% immunity to corporeal damage sources must be checked.
3. He misses! The attack automatically misses. The attack is a nonmagical melee touch attack (although the spell's charge is magical). The shadow--immune to nonmagical attack forms--is totally safe from Abe's touch.

I'm almost certain #2 is wrong as neither touch attack nor spell deals damage, but it's included for completeness.

---

References

The Range entry for Touch says that

You must touch a creature or object to affect it. A touch spell that deals damage can score a critical hit just as a weapon can. A touch spell threatens a critical hit on a natural roll of 20 and deals double damage on a successful critical hit. (PH 175)

and the section Touch Spells in Combat explains further that

Many spells have a range of touch. To use these spells, you cast the spell and then touch the subject.... Touching an opponent with a touch spell is considered to be an armed attack and therefore does not provoke attacks of opportunity. (PH 140-1)

The subtype says that

An incorporeal creature has no physical body. It can be harmed only by other incorporeal creatures, magic weapons or creatures that strike as magic weapons, and spells, spell-like abilities, or supernatural abilities. It is immune to all nonmagical attack forms. Even when hit by spells or magic weapons, it has a 50% chance to ignore any damage from a corporeal source (except for positive energy, negative energy, force effects such as magic missile, or attacks made with ghost touch weapons). Although it is not a magical attack, holy water can affect incorporeal undead, but a hit with holy water has a 50% chance of not affecting an incorporeal creature. (MM 310-1)

---

This question's answer and the Comments on its answer get really close to answering this question.

Answer 1

1. He Hits

Rules Compendium (p. 64) has it covered, emphasis mine:

Even when hit by spells (including touch spells) or magic weapons, an incorporeal creature has a 50% chance to ignore any damage from a corporeal source—except for positive energy, negative energy, force effects such as magic missile, or attacks made with ghost touch weapons. Although it isn’t strictly a magical attack, holy water can damage incorporeal undead, but a hit with holy water has a 50% chance of not affecting such a creature.

For attacks that require attack rolls, the chance to ignore damage is treated as a 50% miss chance. If a creature receives miss chances from multiple sources, such as from being incorporeal and having concealment, they don’t stack. Only the highest miss chance applies.

Nondamaging effects affect incorporeal creatures normally unless such effects require corporeal targets to function (such as implosion) or they create a corporeal effect that incorporeal creatures are normally unaffected by (such as web or wall of stone).

Spark of Life doesn't have anything to suggest it requires corporeality to work, so it should work just fine on your Shadow.

It's worth noting this was actually changed originally in Monster Manual III's glossary for the Incorporeal Subtype (p. 214). The Rules Compendium has a sidebar (p. 65) that explains why:

With all the moving parts of D&D, it’s no surprise that occasionally some tidbit is solved in seemingly random fashion. While working on Complete Arcane, I discovered the ghostform spell, which allowed the caster to assume an incorporeal form. Picked up from Tome and Blood, the spell had previously been ridiculously overpowered, and development had already reduced the duration and increased the spell’s level to 8th. But when reading through the spell, I realized I had a ton of questions. The spell addressed damaging spell effects, but what about nondamaging effects? Could a caster under the effect of ghostform be dominated or slowed? Or gain the benefit of allied spells? On perusing the Monster Manual, I realized that this wasn’t an omission in the spell, but rather in the incorporeal subtype itself. Luckily, we were working Monster Manual III simultaneously, in which we’d already planned to release an updated glossary. The changes to the incorporeal subtype were made and entered, and now ghosts everywhere can rejoice that they now know whether or not they can be affected by the control undead spell.

I've been playing this using your #2 for quite a while, applying the miss chance when trying to apply the spell. From the SRD description I'm not sure how else to treat it, due to the lack of guidance on what to do. It turns out that omission wasn't deliberate and was clarified later.

That of course leads into the ever popular "can Wizards make a rule that even they can't change" dilema with the core books vs other books changing how things work. Given that it's filling in a gap rather than actually changing text (the parts that are spelled out in the SRD appear to be the same in the MM3/RC version), we're probably okay there.

Touch Spells Are Inconsistent

The weird part is that the 50% miss chance applies to touch spells, but according to the text, only ones that do damage. I'm not sure if that was intentional or not, but they keep saying "50% chance to ignore damage". They even say that in the new version, right before explaining that it's treated as a miss chance. By my reading, that means that a touch spell that isn't doing damage would hit just fine.

That inconsistency bugs me, and I'll probably keep playing it as I have been in my games (touch spells still get the 50% miss chance), because I love consistency. YMMV, of course.

Answer 2

2. He may hit. The DM checks the shadow's 50% immunity to corporeal damage sources and, if Abel successfully overcomes that, then the shadow makes a Willpower saving throw. Because the attack is magic yet delivered by a corporeal source, the shadow's incorporeal subtype's 50% immunity to corporeal damage sources must be checked.

---

The only instances in which you don't check for the immunity to corporeal damage are Ghost touch weapons, Positive energy spells, Negative energy spells, and Force effects. All spells that don't fit into those three categories must roll to see if the spell takes effect on the target.

The key part of the paragraphs above is the following:

"Even when hit by spells or magic weapons, it has a 50% chance to ignore any damage from a corporeal source (except for positive energy, negative energy, force effects such as magic missile, or attacks made with ghost touch weapons)."

Since your spell is a Necromantic effect but doesn't state whether or not the spells is a positive or negative energy effect in its description, you must roll to see if the spell takes effect on the incorporeal creature.

Transdimensional Spell

Based on the Rules as written effect for the Feat Transdimensional spell, any spell aside from the above listed effects has a 50% chance to fail on creatures if they are on the ethereal plane. However, this 50% miss chance can be bypassed by the feat Transdimensional spell.

Transdimensional Spell ( Complete Arcane, p. 84)

[Metamagic]

You can cast spells that affect targets lurking in coexistent planes and extradimensional spaces whose entrances fall within the spell's area. Prerequisite

Benefit

A transdimensional spell has its full normal effect on incorporeal creatures, creatures on the Ethereal Plane or the Plane of Shadow, and creatures within an extradimensional space in the spell's area. Such creatures include ethereal creatures, creatures that are blinking or shadow walking, manifested ghosts, and creatures within the extradimensional space of a rope trick, portable hole, or familiar pocket (see page 106). You must be able to perceive a creature to target it with a transdimensional spell, but you do not need to perceive a creature to catch it in the area of a burst, cone, emanation, or spread. A transdimensional spell uses up a spell slot one level higher than the spell's actual level.

Normal

Only force spells and effects can affect ethereal creatures, and no Material Plane attack affects creatures on the Plane of Shadow or in an enclosed extradimensional space. There is a 50% chance that any spell other than a force effect fails against an incorporeal creature.