Estate Planning With a Non-Citizen Spouse in New York

If your spouse is not a U.S. citizen, your New York estate plan needs one critical adjustment most couples never hear about: the unlimited marital deduction does not apply to a non-citizen surviving spouse. The standard fix is a QDOT — a Qualified Domestic Trust — which lets assets pass to your non-citizen spouse while preserving the federal estate-tax benefit. Everything else in your plan (your will, your trust, your power of attorney) still works under New York law, but the tax piece changes. This article compares the main options so mixed-status and immigrant families in New York can choose the right structure.

Why Immigration Status Matters Here

Estate planning is New York state law. Immigration is federal law, governed by USCIS. These are two separate practice areas, and confusing them is where families get hurt.

The good news: a non-citizen — green-card holder or otherwise — has the same right to make a will or trust in New York as a citizen. Foreign heirs and beneficiaries can also inherit New York property; non-resident or non-citizen status does not bar inheritance. It simply adds documentation and tax-withholding steps when the estate is settled.

The catch is purely about tax. Federal law assumes a citizen spouse will eventually be taxed on inherited wealth in their own estate. A non-citizen spouse could leave the country, so Congress withheld the unlimited marital deduction from non-citizen survivors — and created the QDOT as the workaround.

Comparing the Main Options

Here is how the core tools stack up for a mixed-status couple. Start with our estate planning overview if you are new to these terms.

Tool	What it does	Non-citizen spouse impact
Will (EPTL §3-2.1)	Directs who inherits; goes through Surrogate’s Court probate	Fully available; non-citizen can inherit, but no marital tax deduction
Revocable living trust (EPTL Art. 7)	Avoids probate; you keep control	Avoids court delay but gives no estate-tax savings
Irrevocable trust	Tax reduction, asset protection, Medicaid	Powerful, but Medicaid has a 5-year look-back
QDOT	Defers estate tax on assets left to a non-citizen spouse	The standard fix that restores the marital benefit

A few comparison points worth weighing:

• A will is the foundation, but a will alone still runs through probate and does not solve the non-citizen marital-deduction gap.
• A revocable living trust is excellent for avoiding probate and keeping privacy — just remember it offers no tax reduction by itself.
• An irrevocable trust reduces tax and protects assets, but you give up control, and Medicaid planning carries that 5-year look-back.
• A QDOT is the targeted tool when the surviving spouse is not a citizen and the estate is large enough to face tax.

The New York Estate Tax Cliff

New York applies its own estate tax on top of any federal exposure. For 2026, the basic exclusion is $7,350,000. But New York has a notorious cliff: an estate valued over 105% of the exclusion — $7,717,500 — loses the entire exemption, not just the excess. For couples with real estate, retirement accounts, and a business, that threshold arrives faster than expected. Planning around the cliff is often the single biggest reason a non-citizen-spouse family needs a trust-based strategy rather than a will alone.

Don’t forget the lifetime documents either: a durable power of attorney under GOL §5-1513 (the 2021 statutory short form) and a health care proxy under Public Health Law Article 29-C. These let your spouse act for you while you are alive — and they do not depend on citizenship.

When to Bring in an Immigration Attorney

Your New York estate attorney handles the will, the trust, the QDOT, and the Surrogate’s Court filing. But none of that touches your spouse’s immigration status — and sometimes the two questions land on the same kitchen table.

Because immigration is federal, an immigration attorney can represent your family no matter which state you live in. Our firm handles the New York estate side; for the federal immigration side, we honestly cross-refer families to an immigration attorney in the Miami area. Fitenko Law serves Russian- and Ukrainian-speaking families across Miami and South Florida, and works with clients nationwide on federal immigration matters. Using the right specialist for each side of the line — state estate law here, federal immigration law there — is the honest path to a plan that actually holds up.

Frequently Asked Questions

Can my non-citizen spouse inherit my New York property?
Yes. Non-citizen and non-resident status does not bar inheritance in New York. The main difference is added documentation and possible tax-withholding steps, plus the marital-deduction limit that a QDOT addresses.

What is a QDOT and do I need one?
A Qualified Domestic Trust holds assets passing to a non-citizen surviving spouse so the federal estate tax is deferred rather than triggered at death. It is most relevant for larger estates that would otherwise lose the marital deduction.

Does a revocable living trust save estate taxes?
No. A revocable living trust avoids probate and keeps your affairs private, but it provides no estate-tax savings on its own. Tax reduction comes from irrevocable trusts or tools like the QDOT.

Can one attorney handle both my estate plan and immigration?
Rarely well. Estate planning is New York state law and immigration is federal law — two distinct specialties. The strongest plans use a New York estate attorney for the trust and will, and a dedicated immigration attorney for status questions.

Next Steps

For the New York estate side — your will, your trust, the QDOT, and planning around the estate-tax cliff — consult Morgan Legal Group. You can review our estate planning overview or schedule a consultation at calendly.com/russel-morgan/30min.

For the federal immigration side of your family’s situation, reach out to the Miami-area immigration attorney referenced above. Two specialists, one coordinated plan — that is how mixed-status families in New York protect both their legacy and their loved ones.