Yes, immigration status can affect your New York estate plan, but probably not in the ways many families fear. Your status does not stop you from making a valid will, creating a trust, or naming heirs in New York. What it can change are the tax rules that apply to a non-citizen spouse, the documentation foreign heirs need to inherit, and which professional you should call for each problem. This Q&A walks through the worries we hear most often from immigrant and mixed-status families.
Can a Non-Citizen Make a Valid Will or Trust in New York?
Absolutely. New York estate law looks at where you live and own property, not at your citizenship. A non-citizen, a green-card holder, or anyone lawfully present in New York can sign a valid will under EPTL §3-2.1, which requires two attesting witnesses, the testator’s signature at the end of the document, and publication (telling the witnesses it is your will). The same is true for trusts under EPTL Article 7.
If you die without a will, New York’s intestacy rules in EPTL Article 4 decide who inherits, again regardless of citizenship. The honest takeaway: not having a will, not your immigration status, is the bigger risk for most families. To see how the pieces fit together, start with our estate planning overview.
How Does a Non-Citizen Spouse Change the Tax Picture?
This is the single most important estate-tax issue for mixed-status couples. Normally, a U.S. citizen can leave an unlimited amount to a surviving spouse tax-free using the unlimited marital deduction. That deduction does not apply when the surviving spouse is not a U.S. citizen.
The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT for the non-citizen spouse, which preserves the deferral of estate tax. Without proper planning, a non-citizen spouse can face an estate-tax bill that a citizen spouse would not.
Keep New York’s own estate tax in mind, too. For 2026:
| New York Estate Tax (2026) | Amount |
|---|---|
| Basic exclusion | $7,350,000 |
| The “cliff” (105% of exclusion) | $7,717,500 |
The cliff matters: an estate that exceeds $7,717,500 loses the entire exemption, not just the amount over the line. Coordinating a QDOT with this threshold is exactly the kind of planning a New York estate attorney handles.
What About Trusts, Medicaid, and Special Needs?
The trust options are the same for non-citizens as for everyone else:
- Revocable living trust — avoids probate but offers no estate-tax savings. Read more on our trusts page.
- Irrevocable trust — used for tax reduction, asset protection, and Medicaid planning. Medicaid carries a 5-year look-back period, so timing matters.
- Special needs trust (EPTL 7-1.12) — protects a disabled beneficiary’s eligibility for benefits.
Your planning documents should also include a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and a health care proxy (Public Health Law Article 29-C) so someone you trust can act if you cannot.
Can Foreign Heirs Inherit My New York Property?
Yes. Foreign and non-citizen heirs and beneficiaries can inherit New York property. Probate is filed in the New York Surrogate’s Court, and non-resident or non-citizen status does not bar an inheritance. It does add steps: extra identity and residency documentation, and possible tax-withholding requirements for distributions sent abroad. Planning ahead, and naming heirs clearly in a will, keeps the process smoother for relatives overseas.
Where Does Immigration Law Come In?
Here is the part families most often mix up. Estate planning is state law (New York), while immigration is federal law, handled through USCIS. They are separate practice areas, and they call for different specialists.
A New York estate attorney cannot adjust your immigration status, and an immigration attorney does not draft New York trusts. Because immigration is federal, an immigration lawyer can represent families anywhere in the U.S., including New Yorkers. When your situation involves a green card, a family-based petition, or a spouse’s status, that is a federal question.
In the spirit of an honest cross-referral: our firm handles New York estate and estate-planning matters; for the federal immigration side, we suggest families consult a family-immigration legal team. Fitenko Law focuses on family-based immigration and green cards and serves Russian- and Ukrainian-speaking families.
Frequently Asked Questions
Does my green card affect my New York will?
No. A green-card holder can sign a valid New York will under EPTL §3-2.1 just like a citizen. Citizenship is not a requirement to make a will.
Why do I need a QDOT?
Because the unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool that preserves the estate-tax deferral that a citizen spouse would otherwise get automatically.
Can my relatives abroad still inherit?
Yes. Foreign heirs can inherit New York property through Surrogate’s Court. Expect extra documentation and possible tax withholding, but non-citizen status does not block the inheritance.
Should I hire one lawyer for both estate and immigration?
Usually no. They are different fields, one state, one federal. Use a New York estate attorney for your plan and an immigration attorney for status questions.
Next Steps
For the New York estate and estate-planning side, a focused conversation can confirm whether a QDOT, trust, or updated documents fit your family. You can review your options through our estate planning overview or schedule time with Morgan Legal Group at calendly.com/russel-morgan/30min.
For the federal immigration side, the family-immigration team referenced above is a good place to start. Getting the right specialist for each half of the problem is the surest way to protect both your status and your legacy.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
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