Margaret Carol Burns - Page 11

                                       - 10 -                                         
          U.S. 78, 80 (1940); Kean v. Commissioner, T.C. Memo. 2003-163,              
          affd. 407 F.3d 186 (3d Cir. 2005); Gilbert v. Commissioner, T.C.            
          Memo. 2003-92, affd. sub nom. Hawley v. Commissioner, 94 Fed.               
          Appx. 126 (3d Cir. 2004).                                                   
               As the MSA does not explicitly address Mr. Burns's liability           
          to make the $1,400 monthly payments in the event of petitioner's            
          death, we must determine his post mortem obligations under                  
          Florida law.  Under Florida law, where (as here) no minor                   
          children are involved, periodic payments incident to divorce are            
          generally either alimony, which is in the nature of support and             
          terminates on the death of either spouse by operation of law                
          (absent express agreement to the contrary),6 or part of property            
          settlement rights, which are vested and survive the death of                
          either former spouse7.  See O'Malley v. Pan Am. Bank, N.A., 384             
          So. 2d 1258, 1260 (Fla. 1980).  The description of the payments             

          qualified divorce instrument specifically provide that the                  
          alimony obligation would cease at the payee's death.  In the Tax            
          Reform Act of 1986, Pub. L. 99-514, sec. 1843(b), 100 Stat. 2853,           
          Congress amended sec. 71(b)(1) to eliminate the specific writing            
          requirement where alimony terminates at the payee's death or                
          remarriage by operation of State law, effective for payments made           
          under a divorce or separation instrument entered or executed                
          after Dec. 31, 1984.                                                        
               6 See, e.g., Eagan v. Eagan, 392 So. 2d 988, 989 (Fla. Dist.           
          Ct. App. 1981); Ford v. First Natl. Bank, 260 So. 2d 876, 877               
          (Fla. Dist. Ct. App. 1972).                                                 
               7 See, e.g., Scholem v. Scholem, 629 So. 2d 246 (Fla. Dist.            
          Ct. App. 1993); Kuhnke v. Kuhnke, 556 So. 2d 1121 (Fla. Dist. Ct.           
          App. 1989).                                                                 

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: May 25, 2011