QDOT Trust for Non-Citizen Spouses in New York

If your spouse is not a U.S. citizen, the assets you leave to them at your death do not automatically pass estate-tax-free the way they would between two citizens. The unlimited marital deduction simply does not apply to a non-citizen surviving spouse. The standard fix in New York is a Qualified Domestic Trust (QDOT) — a special trust that holds the inheritance, defers the tax, and protects your family. This post gives you a plain-English explanation and, more importantly, a practical checklist of the next steps to take. For many immigrant and mixed-status families, the estate plan and the immigration situation are tangled together, so we will also cover where one practice area ends and the other begins.

Why a Non-Citizen Spouse Changes Everything

Between two U.S. citizens, you can leave any amount to your spouse with no federal estate tax at the first death — that is the unlimited marital deduction. When the surviving spouse is not a citizen, that deduction is unavailable. The concern is straightforward: a non-citizen could inherit and then leave the country, taking the assets beyond U.S. tax reach. A QDOT solves this by keeping the property inside a U.S.-controlled trust with a U.S. trustee, so the tax is deferred rather than lost.

This sits on top of New York’s own rules. The 2026 New York estate tax has a basic exclusion of $7,350,000, with a sharp “cliff” at 105% — $7,717,500. An estate that exceeds the cliff loses the entire exemption, not just the overage. For families near these numbers, combining a QDOT with careful New York planning is essential.

A QDOT is built under the trust rules in EPTL Article 7, like other New York trusts. It is not a do-it-yourself document; it has strict requirements (including a U.S. trustee and provisions to secure the deferred tax) that must be drafted correctly.

Where Immigration Status Fits In

Here is the honest framing every immigrant family deserves: estate planning is state law; immigration is federal law. They are separate practice areas handled by different specialists.

• A New York estate attorney handles your will, trusts, and probate before the Surrogate’s Court.
• Immigration is governed by federal law (USCIS), so an immigration attorney can represent clients in any state — including New York families.

Why does status matter for your trust plan? Because whether your spouse is a green-card holder, a non-citizen, or pursuing citizenship affects which tools you need. A QDOT exists precisely because of non-citizen status. Foreign heirs and non-resident beneficiaries can inherit New York property — non-citizen status does not bar inheritance — but it adds documentation and tax-withholding steps. If your spouse later naturalizes, the planning may change.

Because the federal immigration side is a different specialty, we make honest cross-referrals. Our firm handles your New York estate and trust matters; for the immigration side, families should consult a trusted immigration law firm in South Florida. Fitenko Law serves Russian- and Ukrainian-speaking families and handles all U.S. immigration matters, including for New York clients.

Your Practical Checklist: Next Steps to Take

Use this as a working to-do list with your attorney:

1. Confirm your spouse’s status in writing. Citizen, green-card holder, or non-citizen — this single fact drives the whole plan.
2. Estimate your taxable estate against the NY cliff. Know whether you are below $7,350,000, in the danger zone, or over $7,717,500.
3. Decide on the right trust structure. A revocable living trust avoids probate but offers no estate-tax savings; an irrevocable trust is the tool for tax reduction, asset protection, and Medicaid planning (note the 5-year look-back).
4. Add a QDOT if your spouse is a non-citizen. Ensure it names a U.S. trustee and meets the federal QDOT requirements.
5. Update your core documents. A valid New York will needs two attesting witnesses and your signature at the end (EPTL §3-2.1). Add a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and a health care proxy (Public Health Law Article 29-C).
6. Plan for the administration phase. Understand what your trustee will face during trust administration, especially the extra documentation for foreign or non-resident beneficiaries.
7. Coordinate with immigration counsel if your family has any pending or future immigration matters.

Frequently Asked Questions

Does my non-citizen spouse really not get the marital deduction?
Correct. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard fix to defer the tax.

Can my spouse inherit my New York home if they live abroad or aren’t a citizen?
Yes. Non-resident and non-citizen status does not bar inheritance of New York property. It adds documentation and tax-withholding steps, which your attorney will guide you through.

If my spouse becomes a citizen later, do we still need the QDOT?
That depends on timing and the specifics of your plan. Naturalization can change the analysis, so revisit the plan with your attorney when status changes.

My family also has an immigration case. Can the estate attorney handle that too?
No — those are separate practice areas. Estate planning is state law; immigration is federal law. Use the right specialist for each.

Next Steps

For the New York estate and trust side — drafting a QDOT, your will, and your incapacity documents — consult Morgan Legal Group. You can schedule a consultation or start by reviewing our pages on the revocable living trust and irrevocable trust options.

For the federal immigration side of your family’s situation, speak with the immigration firm referenced above. Getting both specialists working together is the surest way to protect a mixed-status family.