If your spouse is not a U.S. citizen, your New York estate plan needs one adjustment most couples never hear about: the unlimited marital deduction does not apply to a non-citizen surviving spouse. That single rule changes the math on everything. For a U.S.-citizen couple, an unlimited amount can pass to the surviving spouse tax-free; for a mixed-status couple, that automatic shelter is gone, and the standard fix is a QDOT (Qualified Domestic Trust). This post compares the main planning options so immigrant, green-card, and mixed-status families in New York can choose the right tool — and know where the estate (state law) side ends and the immigration (federal law) side begins.
Why Immigration Status Matters Here
It helps to separate two systems that often get tangled together. Immigration is federal law, administered by USCIS, and governs green cards, visas, and citizenship. Estate planning is state law — in your case, New York — and governs your will, trusts, and how property passes at death. They are genuinely separate practice areas.
Your spouse’s immigration status does not bar them from inheriting. A non-resident or non-citizen spouse, and even foreign heirs abroad, can inherit New York property. Status does not block inheritance; it adds documentation and tax-withholding steps. What status does change is the tax treatment between spouses — which is exactly why the QDOT exists.
Comparing the Main Options
Here is how the core estate-planning tools stack up when one spouse is not a citizen.
| Tool | What it does | Best when |
|---|---|---|
| Will (EPTL §3-2.1) | Directs who inherits; requires two witnesses, signed at the end, with publication | Every plan needs one as a foundation |
| Revocable living trust (EPTL Art. 7) | Avoids Surrogate’s Court probate; no estate-tax savings | Privacy and probate avoidance |
| Irrevocable trust | Tax reduction, asset protection, Medicaid planning (5-year look-back) | Larger estates or long-term-care planning |
| QDOT | Defers federal estate tax on assets passing to a non-citizen spouse | The marital-deduction fix for non-citizen spouses |
A few comparisons worth weighing:
- Will vs. living trust: A will alone still goes through New York’s Surrogate’s Court. A revocable living trust keeps assets out of probate but saves no estate tax — it’s about privacy and speed, not taxes.
- Revocable vs. irrevocable trust: Revocable trusts you control and can change; irrevocable trusts give up control in exchange for tax reduction, asset protection, or Medicaid eligibility (subject to the 5-year look-back).
- The QDOT layer: A QDOT sits on top of your plan to preserve marital-deduction-style tax deferral for a non-citizen surviving spouse. Without it, transfers to that spouse can be exposed to estate tax immediately.
New York Estate Tax and the Cliff
New York has its own estate tax that mixed-status couples must plan around. For 2026, the basic exclusion is $7,350,000. The trap is the “cliff”: at 105% of the exclusion — $7,717,500 — an estate loses the entire exemption, not just the excess. An estate just over that line can owe tax on every dollar. Because a non-citizen spouse can’t lean on the unlimited marital deduction, this cliff is easier to stumble into, making coordinated trust and QDOT planning especially important.
Don’t Forget Lifetime Documents
Estate planning isn’t only about death. While both spouses are alive, a non-citizen spouse can still serve as an agent under a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and as a health care agent under a health care proxy (Public Health Law Article 29-C). Setting up a power of attorney ensures your spouse can act for you regardless of citizenship status.
The Immigration Side — Use the Right Specialist
Here’s the honest part. This firm handles the New York estate and estate-planning side. We do not practice immigration law. Because immigration is federal, an immigration attorney can represent families in any state, including New York clients. If your family is still working through green cards or family-based petitions, that’s a separate specialist’s job — we’d recommend consulting a family immigration lawyer in Florida (Fitenko Law), who handles family-based immigration and green cards and serves Russian- and Ukrainian-speaking families. The takeaway: use the right professional for each side, and let them coordinate.
Frequently Asked Questions
Can my non-citizen spouse inherit my New York property?
Yes. Non-citizen and non-resident status does not bar inheritance. It adds documentation and possible tax-withholding steps, but your spouse can inherit.
What is a QDOT and do we need one?
A Qualified Domestic Trust is the standard tool that lets a non-citizen surviving spouse benefit from marital-deduction-style estate-tax deferral. If your estate may face New York or federal estate tax, it’s usually essential.
Does a revocable living trust save estate tax?
No. A revocable living trust avoids probate but provides no estate-tax savings. For tax reduction you’d look at an irrevocable trust and, for a non-citizen spouse, a QDOT.
Can a non-citizen spouse be my power of attorney or health care agent?
Yes. New York does not require U.S. citizenship to serve as an agent under a power of attorney or health care proxy.
Next Steps
For the New York estate and estate-planning side — wills, trusts, QDOTs, and lifetime documents — Morgan Legal Group can help you build a plan that fits a mixed-status family. You can schedule a consultation to get started.
For the federal immigration side — green cards and family-based petitions — consult the family immigration lawyer linked above. Two specialists, one coordinated plan, and a family that’s protected on both fronts.
Further reading from Morgan Legal Group: why estate planning is so important.