Determining Type of Alimony Awarded in Tennessee Divorce: In re Estate of Steil

Facts: While the parties’ divorce was pending, they entered an interim order requiring Husband to pay Wife spousal support of $500 per month for three years. They subsequently entered into a marital dissolution agreement (MDA) that contained the following spousal support provision:

The Husband will pay to the wife the sum of $500 per month. This alimony shall continue monthly unless the wife shall remarry and in that event in the alimony payments shall stop.

The Final Decree incorporated the MDA by reference. Husband made spousal support payments until he passed away approximately one year later. Wife filed a claim against Husband’s estate seeking the “balance owing of alimony in solido” in the amount of $11,000, this amount representing 22 months of unpaid alimony. Husband’s estate objected to the claim on the grounds that the alimony in the MDA was not alimony in solido and, therefore, the spousal support obligation terminated upon Husband’s death. The trial court allowed Wife’s claim. Husband’s estate appealed.

On Appeal: The Court of Appeals reversed the trial court.

A marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. When an MDA is incorporated into a divorce decree, it loses its contractual nature and becomes a judgment of the court. However, it is still construed in the same manner as a contract.

Tennessee Code Annotated § 36-5-121(h) provides that alimony in solido, also known as lump sum alimony, is a form of long term support, the total amount of which is calculable on the date the decree is entered. Alimony in solido may be paid in installments provided the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. Alimony in solido is not terminable upon the death or remarriage of the recipient or the payor.

Alimony in futuro, also known as periodic alimony, is described in Tennessee Code Annotated § 36-5-121(f) as the payment of support and maintenance on a long term basis or until death or remarriage of the recipient. An award for alimony in futuro shall terminate automatically and unconditionally upon the death or remarriage of the recipient. Alimony in futuro shall also terminate upon the death of the payor, unless otherwise specifically stated.

Thus, Wife’s claim turns on the type of alimony awarded. If it is alimony in solido, Wife wins. If it is alimony in futuro, Husband’s estate wins. After reviewing the evidence, the Court concluded:

A fair reading of this language leads to the conclusion that the alimony described therein does not meet the definition of alimony in solido. It is not “an award of a definite sum of alimony. . . .” Because the MDA’s spousal support provision did not set a duration of the monthly obligation, the amount of support ordered was not calculable at the time the decree was entered. To constitute alimony in solido, “the sum of the alimony to be paid [must be] ascertainable when awarded.”

Further, the MDA stated that the alimony obligation would terminate upon Wife’s remarriage. Thus, the alimony created in the MDA “lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid.” That circumstance is the hallmark of alimony in futuro. . . .

There are no indices in the MDA before us that the parties intended that the award be alimony in solido or be anything other than what the language they chose actually states. That language clearly includes an indefinite duration and a contingency that makes calculation of the total amount awarded impossible. Such an award is alimony in futuro.

Accordingly, Husband’s alimony obligation terminated upon his death.

In re Estate of Steil (Tennessee Court of Appeals, Middle Section, May 16, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

Posted by

K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

Leave a Comment