- 11 -
We now consider section 71(b)(1)(D). To qualify as alimony,
petitioner’s obligation must terminate at the death of Ms.
Warriner. In order to determine whether an obligation exists,
the terms of the applicable instrument must be considered, or if
the instrument is silent on the matter, we look to State law.
Kean v. Commissioner, T.C. Memo. 2003-163, supplemented by T.C.
Memo. 2003-275.
Paragraphs 3a. and 3b. of the Amended Order provide for two
categories of payments to Ms. Warriner. Respondent concedes that
payments made under paragraph 3a. are deductible. Therefore, we
discuss only the payments made under paragraph 3b. of the Amended
Order.
Paragraph 3b. of the Amended Order states that the
“Additional spousal maintenance [which] is ordered in the amount
of $1,300 per month until a total amount of $171,575.00 * * * is
paid in full. The amount Ordered in this subparagraph shall not
be effected [sic] by marriage or death of either party.” Under
the analysis of Kean, the Amended Order specifically provides
that the payments would continue after the death of Ms. Warriner,
thus disqualifying the payment under section 71(b)(1)(D).7
Petitioner is not entitled to a deduction under section 215 for
7In general, payments to a former spouse terminate upon the
death of the former spouse. See Colo. Rev. Stat. sec. 14-10-
122(2) (2003). However, if agreed in writing or expressly
provided in the decree, payments to a former spouse may continue
after his or her death under Colorado law. See id.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011