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and permitted reference beyond divorce instruments to State law
to determine whether State law specifically provided that the
payments in question would terminate on the payee’s death. In
analyzing this change, the Court of Appeals for the Sixth Circuit
explained:
Although the 1986 amendment injected state law
into the � 71(b)(1) inquiry, the purpose behind the
1984 revision still stands. A court determining
whether payments qualify as alimony as defined in � 71
will turn to state law only to determine whether state
law, by requiring that the payments terminate upon the
payee’s death, ensures that the payments satisfy �
71(b)(1)(D). Congress clearly did not intend courts to
engage in the very sort of subjective inquiry that had
prompted the 1984 revision. * * * [Id. at 846.]
In analyzing questions regarding termination of payments on
the death of the payee, the statutory mandate of section 71 would
have us first look at the language in the divorce instrument to
determine whether liability survives the death of the payee and,
if the instrument is not clear, then determine whether such
liability terminates at death by operation of State law. Id. at
845-846. In this case, we hold that although the marital
settlement attached to the divorce decree is not as clearly
worded as it might be, the liability in question would have
terminated at death pursuant to the divorce documents.
Furthermore, we hold that the liability would have terminated at
death pursuant to Nebraska law if the marital settlement is
deemed to have failed to address the issue of termination.
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