- 5 - have terminated in the event of his former wife’s death. If so, the payments would have been “alimony”. Because we think petitioner’s payments would not have terminated upon her death, we agree with respondent that they are not alimony, for the reasons stated below. Under section 71(b)(1)(D), if the payor is liable for any qualifying payment after the recipient’s death, none of the related payments required will be deductible as alimony by the payor. See Kean v. Commissioner, 407 F.3d 186, 191 (3d Cir. 2005), affg. T.C. Memo. 2003-163. Whether a postdeath obligation exists may be determined by the terms of the divorce or separation instrument or, if the instrument is silent on the matter, by State law. Morgan v. Commissioner, 309 U.S. 78, 80-81 (1940); see also Kean v. Commissioner, supra at 191. The parties dispute whether the payments at issue meet the requirements of section 71(b)(1)(D). They agree that the agreement and divorce decree do not provide any conditions for the termination of the payments. Respondent maintains that the payments made by petitioner to his former wife are not deductible from his income as alimony under section 215(a) because the obligation to make the payments does not terminate at the death of either party under Texas law. Petitioner argues that the payments are deductible because he intended them to be alimony and because the agreement reached with his former wife did not specifically statePage: Previous 1 2 3 4 5 6 7 8 NextLast modified: March 27, 2008