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did not terminate upon Hermine’s death, as required by section
71(b)(1)(D).
Were Payments Received Under a Divorce or Separation Instrument?
Under section 71(b)(2), the term "divorce or separation
instrument" means:
(A) a decree of divorce or separate
maintenance or a written instrument incident
to such a decree,
(B) a written separation agreement, or
(C) a decree (not described in
subparagraph (A)) requiring a spouse to make
payments for the support or maintenance of
the other spouse.
As no decree of divorce or separate maintenance was in
effect during the years in issue, we must decide whether all or
some of the payments were received by or on behalf of Hermine
under a written separation agreement.
The term "written separation agreement" is not defined in
the Code, the applicable regulations, or in the legislative
history. Jacklin v. Commissioner, 79 T.C. 340, 346 (1982);
Keegan v. Commissioner, T.C. Memo. 1997-359. A written
separation agreement has been interpreted to require a clear
statement in written form memorializing the terms of support
between the parties. See Jacklin v. Commissioner, supra at 350;
Bogard v. Commissioner, 59 T.C. 97, 101 (1972). Letters which do
not show a meeting of the minds between the parties cannot
collectively constitute a written separation agreement. See
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