(dissenting):
I respectfully dissent. I would hold the family court had statutory authority to order Husband to set up an alimony trust. Even if the family court did not have the authority, as the majority holds, I would remand the case for the family court to reconsider an award of lump sum alimony.
I agree with the majority’s conclusion that § 20-3-130(D) is ambiguous and thus the intent of the legislature needs to be ascertained in interpreting this code section. Gilstrap v. South Carolina Budget & Control Bd., 310 S.C. 210, 423 S.E.2d 101 (1992)(if statute is ambiguous, primary rule of construction is to ascertain and give effect to legislature’s *416intent). However, I disagree with the majority as to what the legislature intended when it amended § 20-3-130.1
In a strikingly similar case, the New Jersey Supreme Court held that a like statute does authorize the creation of a trust to secure the payment of alimony because the legislature intended to protect the former spouse. Jacobitti v. Jacobitti, 135 N.J. 571, 641 A.2d 535 (1994). In Jacobitti, the family court ordered a husband to create the same type of trust as ordered in the current case. The ninety-year-old husband was worth six to nine million dollars. The wife, who was nineteen years younger than her husband, had multiple sclerosis and was totally dependant on her ex-husband. The wife was awarded $75,000 in the equitable division of the marital property following the dissolution of their sixteen-year marriage. The court held the ninety-year old-husband, if insurable at all, would have to pay exorbitant premiums so that life insurance was not a viable option. The court held a trust accomplishes the legislature’s intent and was a form of self-insurance. Id. at 540. The court concluded the trust simply replaces the statutory exception for life insurance. See also McCarthy v. McCarthy, 319 N.J.Super. 138, 725 A.2d 32 (1999)(“Jacobitti trust” is simply substitute for life insurance).
Here, the family court found that “[t]he alternative of the purchase of life insurance [was] too expensive due to the Husband’s age” and, based primarily on that finding, determined that the appropriate method to provide security would be through the creation of the trust. The family court found several factors that would warrant continuation of spousal support in the event Husband predeceased Wife. First, there was the twelve-year age difference between the parties and the longer life expectancy accorded to Wife by the life expectancy tables set forth in S.C.Code Ann. § 19-1-150 (1985), *417making it reasonably foreseeable that Wife would survive Husband by more than fourteen years. In addition, Wife’s history of mental problems, which have resulted in significant medical expenses and her inability to maintain gainful employment, supports the family court’s finding that cessation of alimony payments due to Husband’s death would leave her destitute. Given these facts, I would hold the family court acted within its discretion in determining there were special circumstances supporting the deviation from the normal rule that alimony payments would cease upon the death of either party. The family court then found that requiring Husband to obtain life insurance would be too expensive due to Husband’s age and further Husband did not at that time have any life insurance under which he could designate Wife as the beneficiary. It was under these circumstances that the family court ordered Husband to create a trust to provide security for Wife. I find it inequitable that Wife will now receive nothing.
Furthermore, had the family court known that the majority would hold he did not have the authority to order the creation of the trust, I believe he would have ordered Husband to obtain life insurance or awarded lump sum alimony.2 The family court was attempting to be equitable to both parties by not requiring Husband to obtain life insurance as it would be too expensive. I note Husband had a net worth of $4.9 million and requiring him to obtain life insurance or pay lump sum alimony would not bankrupt him. The majority’s decision, however, will leave Wife destitute.3
*418Assuming the majority is correct in its holding that the family court does not have the statutory authority to order a trust, in my opinion, the family court should now reconsider Wife’s request for lump sum alimony. This case presents a situation similar to that in Fort v. Fort, 270 S.C. 255, 241 S.E.2d 891 (1978). There the wife sought a divorce, alimony, and equitable distribution. The husband counterclaimed for a divorce. The master denied both parties’ claims for a divorce, but granted the wife use of the marital home. The husband excepted to the ruling, the wife did not. The circuit court reversed the ruling and granted husband a divorce but did not address the wife’s request for alimony or property division. In ruling on the wife’s contention that she was entitled to consideration by the trial court of her request for alimony, we said:
After the husband excepted to the master’s report, the wife might have conditionally excepted, submitting that if the judge found that the husband was entitled to a divorce, he should order alimony and a property settlement. We are not prepared to say she should have anticipated the ruling and that her failure to file conditional exceptions should bar her from having the issues considered. The issues were definitely raised in her pleadings and in her prayer for relief.
270 S.C. at 260, 241 S.E.2d at 894. In Reaves v. Reaves, 262 S.C. 499, 206 S.E.2d 405 (1974), the trial court granted the husband a divorce on the ground of desertion and denied the wife’s request for alimony. On appeal we reversed and remanded for consideration of alimony. We held: The denial of any alimony to the -wife was predicated at least in part, upon the court’s finding that the husband was entitled to a divorce on the ground of desertion. In view of our holding that the husband was not so entitled, the situation is now substantially different. Whether, under this circumstance and all other pertinent circumstances, the wife is now entitled to any support or alimony, is a matter which has not actually been passed upon by the court below and one which we are reluctant to consider initially in the present state of the record. *419Such issue, or question, is therefore left open for such further proceedings thereabout as the parties hereto might deem appropriate____
Id. at 407. See also Timms v. Timms, 290 S.C. 133, 348 S.E.2d 386 (Ct.App.1986)(citing Reaves). Similarly, here Wife did not appeal the denial of her request for lump sum alimony as she was awarded permanent periodic alimony secured by the trust. In my opinion, whether Wife is entitled to an award of lump sum alimony now should be a matter for the family court to reconsider. Furthermore, I strongly disagree with the majority’s conclusion that the right for Wife to receive lump sum alimony terminated upon Husband’s death. Unlike an award of periodic alimony which terminates upon the payor’s death, an award of lump sum alimony does not. Accordingly, I would affirm the Court of Appeals in result or, at least, remand for the family court to reconsider an award of lump sum alimony.
. I do not think § 20-3-130 is in derogation of the common law as the majority holds. In Hardin v. Hardin, 294 S.C. 402, 365 S.E.2d 34, 36 (Ct.App.1987), the court held “absent special circumstances or specific statutory authority, both of which are lacking here, the Family Court does not have the inherent power to require a supporting spouse to obtain or maintain, solely as an incident of periodic support, a life insurance policy naming the dependent spouse as beneficiary ...” (emphasis added). This case and those following it do not prohibit ordering life insurance to secure alimony if there are special circumstances or statutory authority.
. Special circumstances justifying a lump sum award include the need to continue support after the death of the supporting spouse. See McCune v. McCune, 284 S.C. 452, 327 S.E.2d 340 (1985); Hendricks v. Hendricks, 285 S.C. 591, 330 S.E.2d 553 (Ct.App.1985).
. As to the second issue raised on appeal, Husband contends the family court does not have jurisdiction to apportion non-marital property. Husband received approximately $29,000 in marital assets in equitable distribution and he was ordered to pay Wife $3,200 per month in periodic alimony. However, requiring Husband to fund a trust to secure the payment of periodic alimony is not apportioning non-marital property. Within one year, Husband therefore would be using non-marital assets to pay the periodic alimony. Alimony is not limited to a spouses's share of the equitable distribution. Further, the family court did not order any specific property to be transferred to fund the trust. Cf. Thornton v. Thornton, 328 S.C. 96, 492 S.E.2d 86 (1997)(family *418court had no authority to transfer specific property as security for alimony).