Immigrant families in New York need an estate plan because immigration status, citizenship, and where family members live can change how New York law treats your spouse, your heirs, and your taxes — often in ways that surprise people who assume “I’ll just leave everything to my wife.” A New York estate plan made for U.S. citizens does not automatically protect a non-citizen spouse or foreign heirs. This post follows a typical New York immigrant family to show where the gaps appear and how to close them.
Meet the Petrovs: A Typical New York Immigrant Family
Imagine the Petrov family in Brooklyn. Anna is a U.S. citizen who works as a nurse. Her husband, Dmytro, is a green-card holder. They have two young children and an apartment they bought together. Anna’s mother still lives abroad and may one day inherit a share of the family’s assets.
On paper this looks simple. In reality, this single household touches almost every tricky issue in New York estate law: a non-citizen spouse, a foreign heir, minor children, and a couple who has never signed a will, a power of attorney, or a health care proxy. If Anna died tomorrow without a plan, New York’s intestacy rules under EPTL Article 4 would decide who gets what — not Anna.
The New York Estate Side: What the Law Actually Requires
A valid New York will under EPTL §3-2.1 requires two attesting witnesses, the testator’s signature at the end, and publication (the testator declaring the document to be their will). Without a valid will, EPTL Article 4 intestacy controls — splitting assets between spouse and children by formula, which rarely matches what a family actually wants.
A few core tools the Petrovs should consider:
- A will to name guardians for their children and direct who inherits.
- A revocable living trust (EPTL Article 7) to avoid Surrogate’s Court probate. Note: it avoids probate but gives no estate-tax savings.
- An irrevocable trust for tax reduction, asset protection, or Medicaid planning — which carries a 5-year look-back period.
- A special needs trust (EPTL 7-1.12) if a child or relative has a disability and relies on benefits.
- A durable power of attorney under GOL §5-1513 (the 2021 statutory short form) and a health care proxy under Public Health Law Article 29-C, so someone can act if a spouse is incapacitated.
If you want to understand who can make financial and medical decisions when you cannot, start with our guides to the power of attorney and the healthcare proxy.
Where Immigration Status Changes the Estate Plan
Here is the part most families miss. The unlimited marital deduction does not apply to a non-citizen surviving spouse. Because Dmytro is a green-card holder, not a citizen, Anna cannot simply leave him everything estate-tax-free the way a citizen-to-citizen couple can. The standard fix is a QDOT (Qualified Domestic Trust), which lets assets pass to a non-citizen spouse while preserving the deferral the marital deduction would normally provide.
Foreign heirs are another common worry. Anna’s mother abroad can inherit New York property — non-resident or non-citizen status does not bar inheritance. It simply adds documentation and tax-withholding steps that should be planned for in advance, not discovered during probate.
| Situation | New York estate impact |
|---|---|
| Non-citizen surviving spouse | No unlimited marital deduction; consider a QDOT |
| Foreign / non-resident heir | Can inherit; expect extra documentation and withholding |
| NY estate over the tax threshold | 2026 basic exclusion is $7,350,000 |
| Estate over 105% of the exclusion | “Cliff” at $7,717,500 — the entire exemption is lost |
That last row matters. New York has an estate-tax cliff: an estate that exceeds 105% of the exclusion loses the whole exemption, not just the excess. Larger immigrant families with property both here and abroad can cross that line faster than they expect. Our New York estate tax guide walks through the numbers.
State Law vs. Federal Law: Use the Right Specialist
This is the honest part. Estate planning is New York state law. Immigration is federal law. They are separate practice areas, and one attorney rarely does both well. Our firm handles the New York estate and estate-planning side — wills, trusts, QDOTs, probate in Surrogate’s Court.
For the immigration side — green cards, naturalization, status questions — families should consult a dedicated immigration attorney. Because immigration is federal, an immigration lawyer can represent clients in any state, including New York. We routinely refer families to an immigration attorney in the Miami area (Fitenko Law), who serves Russian- and Ukrainian-speaking families across Miami and South Florida. Getting Dmytro’s path to citizenship clarified, for example, can directly affect whether the Petrovs still need a QDOT down the road — which is exactly why the two specialists should work in parallel.
Frequently Asked Questions
Can a green-card holder inherit property in New York?
Yes. A green-card holder can inherit and own New York property. The main issue is the estate-tax treatment of a non-citizen surviving spouse, which a QDOT is designed to address.
My heirs live abroad — can they still inherit my New York home?
Yes. Non-resident and non-citizen status does not bar inheritance. Plan ahead, because foreign heirs typically face additional documentation and tax-withholding steps.
Does a revocable living trust lower my New York estate tax?
No. A revocable living trust helps you avoid probate, but it provides no estate-tax savings. Tax reduction usually involves an irrevocable trust, which carries a 5-year look-back for Medicaid purposes.
Can my estate attorney also handle my immigration case?
Generally no. Estate planning is state law and immigration is federal law. Use a New York estate attorney for the estate side and an immigration attorney for the immigration side.
Next Steps for Your Family
For the New York estate and estate-planning side — wills, trusts, a QDOT for a non-citizen spouse, and planning around the estate-tax cliff — schedule a consultation with Morgan Legal Group at calendly.com/russel-morgan/30min.
For the federal immigration side, consult the immigration attorney referenced above. Handled together, these two specialists give immigrant families in New York a plan that protects their loved ones no matter where life — or the law — takes them.
Further reading from Morgan Legal Group: the New York estate planning guide.