concurring.
[¶ 28] I concur. Specifically in Section IV of the majority opinión, we hold the trial court was not in error in retaining jurisdiction to decide at a later time whether spousal support may continue after the death of Quamme. That authority derives from N.D.C.C. § 14-05-24, currently codified at N.D.C.C. § 14-05-24.1. However, I write separately to indicate that I do not wish to extend the life of the cases which have held that spousal support continues after the death of the payor spouse merely upon application of language that requires support “during the life of the payee spouse.” Those cases were exceptional when decided and should continue to be regarded as unusual. In Stoutland v. Estate of Stoutland, 103 N.W.2d 286, 287 (N.D.1960) (citations omitted), the court held the language which directed spousal support “to continue until the remarriage of said plaintiff or her death” was sufficient to create an exception to the “general rule” on the continuity of spousal support. In that case, the court noted “[i]t is the general rule that in the absence of an agreement between the parties or a statute providing otherwise, periodic payments of alimony terminate upon the [pay- or’s] death where the decree is silent as to the duration of the payments.” Id. at 288-89.
[¶ 29] A similar result was reached in Estate of Gustafson, 287 N.W.2d 700 (N.D.1980). In that case, this Court again referred to the “general rule” that the pay- or’s death terminates the obligation to support. Id. at 701. However, spousal support payments were ordered to be continued because the trial court had considered the award of alimony to be part of the property settlement. That analysis was key to this Court’s holding that the claim for payments survived the death of the payor husband. Id. at 702.
[¶ 30] Likewise, in Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984), this Court was faced with a payment that was labeled alimony but held it was actually a part of the property division. Id. at 924. The payment was a monthly sum which did not terminate upon the remarriage or death of either party. Id. Because the possibility of continuation after the death of the payee spouse which would not serve the purposes for which spousal support was designed, this Court held the payment was a form of property division. Id. at 925. Although Seablom, at 924, and the later case of Gierke v. Gierke, 1998 ND 100, ¶ 28, 578 N.W.2d 522, cited Stoutland for the proposition that the obligor’s death does not necessarily terminate the payment of spousal support, neither case considered whether the “general rule” applied.
*369[1131] The “general rule” is more in keeping with the expectations of support. It is an obligation which relates to the existing needs of the recipient and the ability of the payor to give support. See Schmitz v. Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176. Therefore, the “general rule” should be applied in the absence of an explicit showing that it was not intended. We have stated that the remarriage of the payee spouse creates a prima facie case for termination of spousal support, unless there are extraordinary circumstances justifying the continuance of support. Pearson v. Pearson, 2000 ND 20, ¶ 7, 606 N.W.2d 128. The death of the payor spouse should be similarly treated. The obligation to pay spousal support would presumably terminate on the death of the obligor, absent a clear expression of intent to the contrary. The burden of proving the intent that spousal support payments continue after the obligor’s death should be on the party asserting the continuation. See 24A Am.Jur.2d Divorce and Separation § 1189 (1998). If treated as a prima facie case for termination, an agreement which calls for termination upon the remarriage or death of the recipient spouse, but is silent about the death of the payor spouse, would not be a sufficient indication of an explicit contrary intent. Id.
[¶ 32] Such treatment would be consistent with the normal expectation that support obligations terminate at death while recognizing that either the court or the parties to a divorce that is settled by agreement would have the ability to place their situation outside of the application of the “general rule” when circumstances so warrant.
[¶ 33] CAROL RONNING KAPSNER