Featured image for “Estate Planning for Non-Citizen Spouses”

Estate Planning for Non-Citizen Spouses

January 22, 2021

Navigating the Tax Landscape

Proper estate planning is crucial for all couples to ensure their assets are distributed according to their wishes in the event of an untimely tragedy. Regardless of age, it is essential that married couples consult with an estate planning professional to prepare the necessary legal documentation should the need arise.

Typically, when a spouse passes away, their assets are transferred to the surviving spouse without incurring estate tax. Nevertheless, for couples with a non-citizen spouse, different planning is required to address estate tax concerns. In this comprehensive guide, we will delve into the unique challenges these couples face and provide valuable advice on navigating the tax landscape.

Understanding Shared Assets

The vast majority of American married couples share their assets. From checking and savings accounts to vehicles, properties, mortgages, and other financial responsibilities, these assets are generally distributed between the two partners.

Historically, U.S. citizens could transfer assets during their lifetime or upon death to a spouse without incurring estate or gift tax consequences, regardless of the spouse’s citizenship. However, in 1988, Congress enacted the Technical and Miscellaneous Revenue Act to prevent non-citizen surviving spouses from returning to their country of origin and avoiding federal taxation on assets held outside the U.S.

Establishing a Qualified Domestic Trust (QDOT)

When a spouse is a non-U.S. citizen, setting up a Qualified Domestic Trust (QDOT) may be a critical component of estate tax planning. Before 2017, you could only leave a non-citizen spouse $60,000 estate tax-free. Since then, the law has changed, and now you can bequeath your full estate tax exemption amount (which is $5.9 million in New York) to anyone you choose, including a non-citizen spouse. For couples whose assets exceed the exemption amount, QDOTs may be an advisable solution.

QDOTs designate your spouse as the beneficiary and defer the payment of any estate tax until the death of the non-citizen spouse. Consequently, this arrangement provides financial security for the surviving spouse while ensuring that estate taxes are paid eventually.

Working with an Estate Planner

Planning ahead is always a wise decision, especially when it comes to estate planning. It is vital to disclose to your estate planner if your spouse is a non-U.S. citizen. Any missteps in the process may lead to significant financial complications down the road after the time of death.

By working closely with an experienced estate planning attorney, couples with non-citizen spouses can develop a comprehensive estate plan that addresses their unique tax situation. The attorney can guide them through the intricacies of creating a QDOT and ensure that their assets are protected from excessive taxation.

Additional Considerations

Besides QDOTs, couples with non-citizen spouses should also consider other estate planning tools to maximize the benefits of their plan. For example, making lifetime gifts to the non-citizen spouse can help reduce the taxable estate. However, gift tax implications should be carefully evaluated to avoid unwanted consequences.

Moreover, couples should review their life insurance policies and retirement accounts to ensure that their beneficiary designations are up-to-date and in line with their estate plan. Life insurance proceeds can often provide the surviving spouse with additional financial security without incurring estate taxes.

Lastly, it may be worthwhile to explore the possibility of the non-citizen spouse obtaining U.S. citizenship. Becoming a U.S. citizen can simplify the estate planning process and eliminate the need for a QDOT, as assets can be transferred to the surviving spouse without incurring estate tax. However, this process can be time-consuming and may not be the right choice for everyone, so it is essential to weigh the pros and cons carefully.


Estate planning for couples with non-citizen spouses can be complex and requires careful consideration of various tax laws and regulations. By working with a knowledgeable estate planning attorney and utilizing tools such as QDOTs, lifetime gifts, and life insurance, these couples can create a comprehensive estate plan that protects their assets and ensures their wishes are carried out.

Planning for the future is crucial, and it is never too early to start the conversation. For more information on estate planning and how to navigate the unique challenges faced by couples with non-citizen spouses, contact our experienced estate planning attorneys today.

With this, as with ALL legal matters, you are strongly advised to speak with an attorney.

For questions or assistance, contact the Law Offices of Katharine J. Richards, P.C.
at (516) 505-1780 or e-mail Info@KJRichardsLaw.com.