Margaret Carol Burns - Page 14

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               Under Florida law, since the payments at issue were part of            
          a property settlement, Mr. Burns's liability for them would have            
          survived petitioner's death.  See Salsman v. Salsman, 360 So. 2d            
          54, 55 (Fla. Dist. Ct. App. 1978) (under separation agreement,              
          husband was obligated to make mortgage payments on marital home             
          that was to become wife's sole property; husband's obligation to            
          make mortgage payments survived wife's death); see also McIntyre            
          v. McIntyre, supra at 207 (since payor spouse's liability for               
          periodic payments was incurred in exchange for other property               
          rights of payee spouse, payments were property settlement and               
          liability for them survived payor spouse's death).  Pursuant to             
          Florida law, the MSA gave petitioner a vested property right in,            
          and Mr. Burns had a corresponding liability to petitioner or her            
          estate for, the payments of $1,400 per month until the marital              
          home was sold.  Consequently, Mr. Burns's liability to make the             
          payments would not have been extinguished by petitioner's death             
          but would have continued until the marital home was sold.  As a             
          result, the payments (totaling the $16,800 received by petitioner           
          in 2002) fail to qualify as alimony because they do not satisfy             
          section 71(b)(1)(D).                                                        
               Because we hold in petitioner's favor on the foregoing                 
          basis, we do not address petitioner's contention that the MSA was           
          the product of mistake insofar as it failed to designate that the           
          $1,400 monthly payments were not includible in gross income under           

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