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the statutory law of most States, alimony terminates at the death
of the payee spouse unless the separation agreement or the
divorce decree provides to the contrary. Therefore, in 1986,
Congress struck the parenthetical under section 71(b)(1)(D) that
provided for alimony treatment only if the divorce or separation
instrument stated that there is no liability on behalf of the
payor spouse to make the payments after the death of the payee
spouse. See sec. 1843(b) of the Tax Reform Act of 1986, Pub. L.
99-514, 100 Stat. 2085, 2853. But even after the 1986 amendment,
if an obligation to make payments survives the death of the payee
spouse under either the terms of the divorce decree or State law,
then such payments will not be considered alimony. Thus, the
1986 amendment injected State law into the section 71(b) inquiry
because, in order to distinguish alimony from property
settlement, it may sometimes become necessary to consider State
law to decide whether an obligation to make support payments
survives the death of the payee spouse.
The issue before us is whether the payments petitioner
received pursuant to the provisional order were for her support,
thus constituting alimony, or in the nature of a property
settlement and therefore excludable from her gross income.
3(...continued)
separation instrument states that there is no such
liability).
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