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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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