Marlin G. Springer - Page 24

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          or remarriage of the payee spouse on the payor spouse’s liability           
          to make the payments.                                                       
               Additionally, we addressed the Commissioner’s argument that            
          a provision in the instrument stating that the agreement was                
          binding on the parties and their heirs, assigns, and personal               
          representatives indicated that the payor spouse or his estate               
          might be liable to make payments to the payee spouse after her              
          death.  We declined to read the binding agreement provision so              
          broadly “as to require the payments to continue after * * * [the            
          payee spouse’s] death or to constitute an agreement of the                  
          parties that the alimony order will not terminate on * * * [the             
          payee spouse’s] death, as otherwise required by Neb. Rev. Stat.             
          section 42-365.”15                                                          
               Finally, we examined the Supreme Court of Nebraska’s holding           
          in Kingery v. Kingery, supra.  We noted that under the holding of           
          that case, if Neb. Rev. Stat. section 42-365 applies, a payor’s             
          liability to pay alimony terminates automatically on the death of           
          the payee.  Like the court in that case, we disagreed with the              
          position that the statutory direction can be defeated by a                  
          general contractual provision prohibiting modification of the               

               15The marital agreement in this case contains a similar                
          “binding agreement” provision.  Respondent has not argued in this           
          case that this provision indicates or implies that the annual               
          payments were intended to survive the death of Ms. Springer.                

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