If your family includes a green-card holder, a non-citizen spouse, or relatives living abroad, you need an estate plan in New York at least as much as anyone else, and often more. New York estate law applies to the property you own here regardless of your immigration status, and a few of its rules treat citizens and non-citizens very differently. A plan built around your family’s actual status protects your spouse, your children, and your home from avoidable taxes, delays, and court complications.
Let’s follow a typical situation. Imagine Maria and Andriy, a married couple in Brooklyn. Andriy is a U.S. citizen; Maria is a green-card holder. They own a co-op, have two children, and Maria’s parents still live overseas. On the surface, they look like any other New York family. But the gaps in a “standard” plan show up fast once you look closely.
The Non-Citizen Spouse Problem
Here is the trap most families never see coming. When a U.S. citizen dies and leaves everything to a U.S. citizen spouse, the unlimited marital deduction lets the property pass with no federal estate tax. But that unlimited marital deduction does not apply when the surviving spouse is not a U.S. citizen.
So if Andriy dies first and leaves everything to Maria while she is still a green-card holder, that automatic spousal shield is gone. The standard fix is a QDOT (Qualified Domestic Trust), which lets the assets pass into a trust structured to preserve the deferral for a non-citizen surviving spouse. This is not exotic; it is the routine tool for mixed-status couples, and it has to be set up correctly while both spouses are alive.
This sits on top of New York’s own estate tax. For 2026, the basic exclusion is $7,350,000, but New York uses a “cliff” at 105% of that amount, $7,717,500. An estate that goes over the cliff loses the entire exemption, not just the excess. For families whose net worth is concentrated in a New York home that keeps appreciating, planning around that cliff matters. Our New York estate tax guide walks through the numbers.
What Happens Without a Plan
If Maria and Andriy never sign wills, New York intestacy law (EPTL Article 4) decides who inherits, in fixed shares that may not match what they wanted. A valid New York will (EPTL §3-2.1) requires two attesting witnesses, the testator’s signature at the end, and publication, the act of declaring to the witnesses that the document is your will.
Their decision-making documents matter just as much while they are alive. A durable power of attorney under the 2021 New York statutory short form (GOL §5-1513) lets a trusted person handle finances if one spouse is incapacitated. A health care proxy under Public Health Law Article 29-C names who makes medical decisions. For an immigrant family where one spouse handles most paperwork, these documents prevent a crisis from becoming a courtroom problem.
Trusts, Foreign Heirs, and Probate
A revocable living trust (EPTL Article 7) can help the family avoid probate, though it offers no estate-tax savings on its own. An irrevocable trust can reduce taxes, protect assets, or plan for Medicaid, which carries a 5-year look-back. If a child has a disability, a special needs trust (EPTL 7-1.12) preserves benefits eligibility.
What about Maria’s parents abroad? Good news: foreign and non-citizen heirs can inherit New York property. Non-resident or non-citizen status does not bar inheritance. Probate is still filed in the New York Surrogate’s Court, but foreign beneficiaries usually face extra documentation and tax-withholding steps. Planning ahead keeps those steps from stalling the estate.
| Family situation | New York estate tool |
|---|---|
| Non-citizen surviving spouse | QDOT |
| Avoid probate | Revocable living trust |
| Tax reduction / Medicaid | Irrevocable trust (5-year look-back) |
| Incapacity (finances) | Durable power of attorney |
| Incapacity (medical) | Health care proxy |
Where Immigration Fits In, and Where It Doesn’t
This is the part families most often confuse. Estate planning is New York state law. Immigration is federal law. They are separate practice areas, handled by different specialists. A New York estate attorney drafts your QDOT, will, and trusts; that attorney does not adjust your immigration status. Likewise, an immigration attorney cannot fix your New York estate tax exposure.
Because immigration is federal, an immigration attorney can represent your family from anywhere in the U.S., including New York clients. If Maria is pursuing citizenship or the family is sponsoring relatives, that is the federal side. Our firm handles the New York estate and estate-planning side; for the immigration piece, families should consult an attorney who handles family-based green cards. Fitenko Law serves family-based immigration matters and works with Russian- and Ukrainian-speaking families, which can ease the process for newcomers navigating two legal systems at once.
The honest takeaway: use the right specialist for each side. Coordinating both protects your family fully.
Frequently Asked Questions
Can my spouse inherit if she is not a U.S. citizen?
Yes, but the unlimited marital deduction does not apply to a non-citizen spouse. A QDOT is the standard tool to preserve the tax deferral.
Can relatives living abroad inherit my New York home?
Yes. Non-resident and non-citizen status does not bar inheritance. The estate goes through Surrogate’s Court, with extra documentation and possible tax-withholding steps.
Do I need both an estate attorney and an immigration attorney?
Often, yes. They cover different bodies of law, state estate planning versus federal immigration, and a complete plan addresses both.
Does becoming a citizen change my estate plan?
It can. For example, the non-citizen-spouse rules and the need for a QDOT may no longer apply, so a plan should be reviewed after a status change.
Next Steps
For the New York estate and estate-planning side, including QDOTs, trusts, and protecting your family from the estate-tax cliff, consult Morgan Legal Group. You can schedule a consultation here. For the federal immigration side, reach out to the family-based immigration attorney referenced above. With the right specialist on each front, your immigrant family in New York can build a plan that truly holds.
Further reading from Morgan Legal Group: why estate planning is so important.