Most matrimonial agreements will require that spousal maintenance needs to be paid for some period of time, but could end if the recipient remarries, holds herself out as someone’s spouse, dies or the payor dies.  But what would happen if the only termination event was the recipient’s re-marriage?  Could the payor (or his Estate) be required to continue to make payments?

“The term “maintenance” shall mean payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivisions five-a and six of this part, to be paid at fixed intervals for a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either party or upon the payee’s valid or invalid marriage…” NY CLS Dom Rel § 236 [B] [1] [a]

The rule is, unless the parties modify or extend the duration of maintenance by a contract, a spouse’s obligation to pay maintenance terminates upon their death.  If the parties want to modify or extend their obligation, it must be made explicitly clear in an agreement.  If it not explicitly clear, then the court will need to look at the four corners of the document in its context and examine each provision to determine the overriding intent.  The inclusion of independent sources of support can show a party’s intention to continue maintenance post-death[1].

The State’s highest Court has held that generally a spouse’s obligation to make maintenance payments terminate upon their death[2].  However, parties may modify or extend the duration of maintenance by contract.  Factors to look at are designation of a former spouse as an irrevocable beneficiary on a life insurance policy, lump-sum transfer in the discharge of claims against the estate, and other distributions accruing upon the death of the payor spouse.

While it is unlikely you will be responsible to make payments when you are on the other side of heaven, the easiest way to be sure is to have clear language that spousal maintenance payments end upon the death of the payor.  If the recipient wants to be sure that he will continue to receive payments if the payor dies before her obligation does, then obtain some guarantee such as life insurance or being the named beneficiary of a retirement asset.

[1] Lorenz v Lorenez, 63 A.D.3d 1361 (3d Dept 2009).

[2] Matter of Riconda, 90 N.Y.2d 733 (1997).

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