If you are a New York resident married to a non-citizen, the single most important thing to know is this: the unlimited marital deduction does not apply to a surviving spouse who is not a U.S. citizen, and the standard fix is a QDOT (Qualified Domestic Trust). Without one, assets passing to your non-citizen spouse can be exposed to federal estate tax at your death instead of deferring it. Everything else in your plan — your will, your trusts, your power of attorney — still works for mixed-status families, but a non-citizen spouse changes the tax math, so the comparison of your options matters more than usual.
Below we weigh the main tools side by side so you can see which combination fits your family. This firm handles New York estate matters; immigration is a separate, federal practice area, and we will be clear about where that line falls.
Why Citizenship Status Changes the Plan
For two U.S.-citizen spouses, an unlimited amount can pass to the survivor tax-free at the first death. That deferral is simply not available when the surviving spouse is a non-citizen — even a lawful green-card holder. The reason is policy: a non-citizen could leave the country with the inherited assets beyond the reach of U.S. estate tax. A QDOT solves this by holding the assets in trust with a U.S. trustee, deferring the tax until the survivor draws down principal or passes away.
It is worth separating two different anxieties here. The estate-tax question is governed by state and federal estate law. Your spouse’s path to citizenship or a green card is governed by federal immigration law — a completely different system. The two intersect on this one deduction issue, but they are not the same problem and are not solved by the same professional.
Comparing the Main Options
| Tool | What it does | Best for a non-citizen spouse? |
|---|---|---|
| Will (EPTL §3-2.1) | Directs who inherits; requires two witnesses and the testator’s signature at the end | Foundational, but a will alone does not preserve the marital deduction |
| Revocable living trust (EPTL Art. 7) | Avoids Surrogate’s Court probate; no estate-tax savings | Good for privacy and probate avoidance; pair it with a QDOT for tax |
| QDOT | Holds assets for a non-citizen surviving spouse; defers estate tax | The standard fix for the marital-deduction gap |
| Irrevocable trust | Reduces taxable estate, asset protection, Medicaid planning (5-year look-back) | Useful for larger estates or long-term-care planning |
| Special needs trust (EPTL 7-1.12) | Protects a disabled beneficiary’s benefits | When a beneficiary relies on needs-based programs |
A few quick contrasts to keep in mind:
- A revocable trust avoids probate but saves no estate tax; a QDOT saves (defers) tax but is a different instrument layered on top.
- An irrevocable trust can shrink a taxable estate, but transfers can trigger the 5-year Medicaid look-back.
- A will is essential either way — without one, intestacy under EPTL Article 4 decides who inherits, which rarely matches a mixed-status family’s wishes.
The New York Estate-Tax Cliff
New York adds its own pressure. For 2026, the basic exclusion is $7,350,000, but New York has a notorious cliff at 105% of the exclusion — $7,717,500. An estate that crosses that cliff loses the entire exemption, not just the excess. For couples with a non-citizen spouse, this makes coordinating a QDOT with overall estate-tax planning especially important. See our New York estate tax guide for how the cliff is calculated, and our estate planning overview for how these pieces fit together.
Two more documents belong in every plan regardless of citizenship: a durable power of attorney (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, which a will never does.
Where Immigration Law Comes In
A common worry: can my non-citizen spouse or foreign relatives even inherit my New York property? Yes. Probate is filed in the NY Surrogate’s Court, and non-resident, non-citizen heirs can inherit — citizenship status does not bar inheritance. It simply adds documentation and tax-withholding steps.
What estate planning cannot do is resolve your spouse’s immigration status. Immigration is federal law (USCIS), so an immigration attorney can represent New York families from anywhere in the country. We handle the New York estate side; for green cards, naturalization, or any federal immigration question, the honest move is to bring in a specialist. We’re glad to refer families to an experienced immigration lawyer in Florida — Fitenko Law serves Russian- and Ukrainian-speaking families and handles all U.S. immigration matters.
Frequently Asked Questions
Does my non-citizen spouse need to become a citizen before I do estate planning?
No. You can plan now. A QDOT addresses the marital-deduction gap today; if your spouse later naturalizes, the plan can often be simplified.
Will a revocable living trust save us estate tax?
No. A revocable trust avoids probate but provides no estate-tax savings. For tax deferral with a non-citizen spouse, a QDOT is the standard tool.
Can my relatives abroad inherit my New York home?
Yes. Foreign and non-citizen heirs can inherit New York property through Surrogate’s Court; expect extra documentation and possible tax-withholding steps.
Do I need both an estate lawyer and an immigration lawyer?
Often, yes. They are separate practice areas — use the right specialist for each side of your situation.
Next Steps
For the New York estate side — wills, trusts, QDOT planning, and the estate-tax cliff — talk with 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, consult an experienced immigration lawyer (Fitenko Law, linked above). Getting both specialists working together is how mixed-status New York families protect each other with confidence.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
Further reading from Morgan Legal Group: .