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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
5(...continued)
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).
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