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0 (D) there is no liability to make any
such payment for any period after the death
of the payee spouse and there is no liability
to make any payment (in cash or property) as
a substitute for such payments after the
death of the payee spouse.
The "divorce or separation instrument" to which section
71(b)(1)(A) refers includes "a decree of divorce or separate
maintenance", sec. 71(b)(2)(A), or "a decree * * * requiring a
spouse to make payments for the support or maintenance of the
other spouse", sec. 71(b)(2)(C).
The parties agree that the unallocated family support
payments at issue in this case satisfy all of the requirements
set forth in section 71(b)(1)(A) and (C). The parties disagree,
however, as to whether the requirements of section 71(b)(1)(D)
and (B) have been met.
We turn first to the termination requirement of section
71(b)(1)(D).
Although section 71(b)(1)(D) requires that there must be no
liability to make alimony or separate maintenance payments for
any period after the death of the payee spouse, the divorce or
separation agreement need not expressly state that the payment
obligation terminates upon the death of the payee spouse if
termination would occur by operation of State law. See Notice
87-9, 1987-1 C.B. 421, 422. In this case, because the State
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