Immigrant families in New York need an estate plan because immigration status changes how your assets pass to the people you love, even though it never bars them from inheriting. A non-citizen spouse loses the unlimited marital deduction, foreign heirs face extra documentation and tax-withholding steps, and a family spread across countries can be left guessing without clear instructions. A New York estate plan answers those questions in writing, while a separate immigration attorney handles the federal side. The two are different practice areas, and getting both right protects your family.
Meet the Petrov Family
Consider a composite New York family. Andrei is a green-card holder who came from Ukraine; his wife Olena is still a non-citizen on a marital visa. Their daughter was born in Brooklyn and is a U.S. citizen, while Andrei’s mother remains in Kyiv. They own a Queens co-op and a modest brokerage account.
If Andrei dies without a will, New York’s intestacy rules under EPTL Article 4 decide who gets what, with no regard for the family’s wishes or the complexity of their immigration picture. A will under EPTL §3-2.1 fixes that. It must be signed by Andrei at the end, witnessed by two attesting witnesses, and properly published. With that single document, the Petrovs replace a state default with their own plan.
How Immigration Status Shapes the Estate Side
Here is the part many families miss. Andrei’s mother in Kyiv can inherit New York property. Non-resident or non-citizen status does not bar inheritance. What it adds is paperwork: foreign heirs face extra documentation and potential tax-withholding steps when the estate is administered through the New York Surrogate’s Court, where probate is filed.
Olena’s situation is different and more urgent. The unlimited marital deduction does not apply to a non-citizen surviving spouse. If Andrei leaves everything to Olena outright, the usual spousal tax shelter is gone. The standard fix is a QDOT (Qualified Domestic Trust), which lets assets pass to a non-citizen spouse while preserving the deferral. This is exactly the kind of issue a New York estate attorney plans around before it becomes a crisis.
| Family member | Status | Estate planning point |
|---|---|---|
| Andrei | Green-card holder | Needs a valid will (EPTL §3-2.1) |
| Olena | Non-citizen spouse | No marital deduction; consider a QDOT |
| Daughter | U.S. citizen | Minor; needs a guardian named |
| Mother (Kyiv) | Non-resident heir | Can inherit; extra documentation/withholding |
The Tools New York Gives You
A complete plan is more than a will. The Petrovs should also consider:
- A revocable living trust to avoid probate (note: it offers no estate-tax savings on its own), or an irrevocable trust for tax reduction, asset protection, or Medicaid planning (subject to a 5-year look-back).
- A durable power of attorney under GOL §5-1513, using the 2021 statutory short form, so a trusted person can manage finances if Andrei is incapacitated.
- A healthcare proxy under Public Health Law Article 29-C to name who makes medical decisions.
New York’s 2026 estate tax adds another reason to plan: the basic exclusion is $7,350,000, but there is a cliff at 105%, or $7,717,500. An estate that crosses the cliff loses the entire exemption, not just the excess. For families with appreciating real estate, that line matters.
Two Different Lawyers for Two Different Laws
This is the honest part. Estate planning is state law. Immigration is federal law, administered by USCIS, which means an immigration attorney can represent families in any state, including New York clients. Our firm handles New York estate and estate-administration matters; we do not give immigration advice, predict approvals, or quote government processing times.
For the federal immigration side of a mixed-status family’s situation, the right move is to consult the right specialist. We are glad to point families toward a knowledgeable Florida immigration lawyer at Fitenko Law, who handles U.S. immigration matters and serves Russian- and Ukrainian-speaking families. Use a New York estate attorney for the estate plan and a dedicated immigration attorney for status questions, so each piece is handled by someone who lives in that body of law.
Frequently Asked Questions
Can my relatives abroad inherit my New York property?
Yes. Non-resident or non-citizen status does not prevent inheritance. The estate may face additional documentation and tax-withholding steps in Surrogate’s Court.
My spouse is not a U.S. citizen. Is that a problem for taxes?
It can be. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to address this.
Does a living trust save us on estate tax?
No. A revocable living trust avoids probate but provides no estate-tax savings on its own. Irrevocable trusts are the tax-planning vehicle.
Can my estate lawyer handle our green-card case too?
Those are separate practice areas. Estate planning is state law; immigration is federal. You generally want a specialist for each.
Next Steps for Your Family
For the New York estate and estate-administration side, talk with Morgan Legal Group. You can review your options through our trusts page or schedule a consultation at calendly.com/russel-morgan/30min. For the immigration side of your family’s situation, reach out to the Fitenko Law immigration team referenced above. Two specialists, one well-protected family.
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