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terminates upon the death of the payee spouse, effective for
instruments executed after December 31, 1986. See Tax Reform Act
of 1986, Pub. L. 99-514, sec. 1843(b), 100 Stat. 2085, 2853;
Leventhal v. Commissioner, T.C. Memo. 2000-92. Therefore,
payments are included in the recipient’s gross income if
termination at death would occur under State law. See Leventhal
v. Commissioner, supra.
In New York, actions for divorce are governed by part B of
section 236 of the Domestic Relations Law. N.Y. Dom. Rel. Law
sec. 236B (McKinney 1999 & Supp. 2005). New York Domestic
Relations Law section 236B(1)(a) provides:
The term “maintenance” shall mean payments provided for
in a valid agreement between the parties or awarded by
the court in accordance with the provisions of
subdivision six of this part, to be paid at fixed
intervals for a definite or indefinite period of time,
but an award of maintenance shall terminate upon the
death of either party or upon the recipient’s valid or
invalid marriage, or upon modification pursuant to
* * * [section 236B9.b.].
The statute differentiates between maintenance payments made
pursuant to an agreement and those made under court decree. See
Leventhal v. Commissioner, supra (citing Scheinkman, Practice
Commentaries, in McKinney's Consol. Laws of N.Y., Book 14,
Domestic Relations Law C236B:10, at 330-331 (1999)). With
respect to court-awarded maintenance, the payments automatically
terminate upon any of the events listed in the statute
(terminating events). See id. With respect to maintenance
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