I do - until death do us part

There’s an old adage you hear at weddings: “Until death do us part.” Unfortunately, 50% of the marriages end in divorce these days and not in death.

Despite that statistic, there actually are some circumstances where people are tied together until they do die. One example is where people own real estate as joint tenants with full rights of survivorship. Unless they agree otherwise, neither of these people can sell that property or transfer his/her interest in the property while the other person is still alive. Then it’s basically a race to the grave. When one of the owners dies, the entire interest reverts to the other owner(s), and all that is necessary is the recording of a death certificate with the Register of Deeds to transfer the interest to the survivor. The only exception to this occurs in a divorce where the court has statutory authority to distribute joint property to one of the owners. In fact, same sex couples complain that they cannot marry in the State of Michigan. The real hardship, however, is the fact that they cannot divorce and take advantage of a court’s statutory authority to divide and distribute joint property in that divorce.

The other example of continuing entanglement occurs when a court awards spousal support and the other party dies. In today’s world, most judgments contain a provision that spousal support terminates on the death of the payee. That does not address the situation where the payor dies instead.

Internal Revenue Code section 71(b)(1) and 215 define deductible alimony or separate maintenance payment as follows:

(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,

(B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215,

(C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

(D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.

Emphasis supplied. Michigan courts now require entry of a “Uniform Spousal Support Order” if alimony is ordered, and that order includes language that terminates spousal support on the death of the payee so that the spousal support is deductible.

A different issue arises, however, when the payor of spousal support dies. In Flager v Flager, 190 Mich App 35 (1991), the Court of Appeals held the a trial court had erred when it granted a motion to terminate alimony after the ex-husband had died and when the court believed that the termination of spousal support was required as a matter of law. The court noted:

At common law, proceedings to enforce alimony would abate on the death of either party. In Michigan, however, statutory law has long provided the authority to award, modify and enforce alimony. M.C.L. § 552.23; M.S.A. § 25.103; M.C.L. § 552.27; M.S.A. § 25.105; M.C.L. § 552.28; M.S.A. § 25.106. That law has been interpreted consistently by the courts to mean that the obligation to pay alimony does not terminate by operation of law upon the death of the payor; it may be enforced against the payor's estate. Braffett v. Braffett, 308 Mich. 506, 14 N.W.2d 129 (1944). The trial court has the authority, however, to modify or terminate permanent alimony upon changed circumstances, so long as it is periodic, not alimony-in-gross. Easley v. John Hancock Mutual Life Ins. Co., 403 Mich. 521, 271 N.W.2d 513 (1978); Welsh v. Welsh, 346 Mich. 292, 78 N.W.2d 120 (1956); LaBarge v. LaBarge, 312 Mich. 157, 20 N.W.2d 143 (1945).

Defendant is incorrect in his assertion that permanent alimony cannot be periodic. The alimony in this case is permanent periodic alimony. It is not alimony-in-gross, because it terminates upon further order of the court. Tomblinson v. Tomblinson, 183 Mich.App. 589, 594, 455 N.W.2d 346 (1990). Therefore, it is modifiable and terminable if a change in circumstances has occurred.

Defendant argues the judge made a finding that the death of Mr. Flager constituted a change in circumstances warranting the termination of alimony. He did not, although certainly he is empowered to so rule. It is clear from his written opinion that the judge acted solely on the erroneous conclusion that Mr. Flager's death terminated the alimony obligation as a matter of law.

It is incumbent on the trial judge to make factual findings upon which to base a determination whether there has been a change in circumstances. If a change has taken place, he must then make factual findings from which to conclude whether the alimony should be modified and, if so, by what amount. Defendant bears the burden of proving that a change in circumstances has taken place and that it warrants a modification or termination of alimony. Rapaport v. Rapaport, 158 Mich.App. 741, 746, 405 N.W.2d 165 (1987).

Parties are free to include a provision in their judgments of divorce that spousal support or alimony will terminate on the death of the payee and on the death of the payor also. Absent such a provision, a surviving ex-spouse can petition a court to extend the term of alimony and/or modify the amount of alimony after a former spouse dies. This then becomes a burden to the estate because the estate must defend against that claim, and the claim may consume the assets of the estate.