If you are married to a non-U.S. citizen and you live in New York, the QDOT (Qualified Domestic Trust) is the standard tool that lets your spouse inherit your estate without an immediate federal estate-tax hit. Here is the short version: the unlimited marital deduction — the rule that normally lets one spouse leave everything to the other tax-free — does NOT apply when the surviving spouse is not a U.S. citizen. A QDOT is the recognized fix. It holds the assets, pays your surviving spouse income for life, and defers the federal estate tax until the principal is distributed or the trust ends. The rest of this post is a practical checklist of the next steps to take, plus where estate planning ends and immigration law begins.
Why a Non-Citizen Spouse Needs a QDOT
The marital deduction exists because the government assumes a surviving U.S. citizen spouse will eventually be taxed on whatever is left at their own death. A non-citizen spouse could move abroad with the inheritance and leave the assets beyond the reach of U.S. tax collection. So the law withholds the unlimited marital deduction unless the assets pass through a QDOT.
A QDOT is a specific kind of irrevocable trust. New York trusts are governed by EPTL Article 7, and an irrevocable trust is the structure used for tax reduction and asset protection. With a QDOT:
- Your surviving spouse receives all trust income for life.
- At least one trustee must be a U.S. citizen or a U.S. bank or trust company.
- Federal estate tax is deferred, not erased, and generally comes due when principal leaves the trust or at your spouse’s death.
This is different from a revocable living trust, which avoids probate but gives no estate-tax savings. If you are still deciding which structure fits your family, our trust vs. will comparison is a good starting point.
New York Estate Tax and the 2026 Cliff
A QDOT addresses the FEDERAL marital-deduction problem. New York has its own separate estate tax, and the numbers matter for 2026.
| New York Estate Tax (2026) | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| Cliff threshold (105%) | $7,717,500 |
New York’s exemption is unusual because of the “cliff.” If your taxable estate exceeds 105% of the exclusion — that is, $7,717,500 — you lose the ENTIRE exemption, not just the amount over the line. For mixed-citizenship couples with growing assets, coordinating a QDOT with New York’s cliff is exactly the kind of planning that should be done with an attorney rather than guessed at.
Where Estate Planning Ends and Immigration Begins
This is the part families most often get tangled. Estate planning is STATE law — New York controls wills under EPTL §3-2.1 (two attesting witnesses, the testator signs at the end, and publication), intestacy under EPTL Article 4, powers of attorney under GOL §5-1513, and health care proxies under Public Health Law Article 29-C. Probate, when needed, is filed in the New York Surrogate’s Court.
Immigration is FEDERAL law, handled through USCIS. Your spouse’s citizenship status is what triggers the QDOT requirement, but a New York estate attorney does not adjust that status — and an immigration attorney does not draft your trust. They are separate practice areas, and the honest answer is to use the right specialist for each.
The reassuring news: a non-resident or non-citizen status does not bar inheritance. Foreign heirs and beneficiaries CAN inherit New York property; it simply adds documentation and tax-withholding steps. So if your spouse is on a green card and considering naturalization, that decision belongs on the immigration side of the table.
Because immigration is federal, an immigration attorney can represent New York families wherever they live. Our firm handles the New York estate and trust side; for the federal immigration piece — green cards, naturalization, and family petitions — we honestly suggest families consult a family green card and immigration lawyer. Fitenko Law works with Russian- and Ukrainian-speaking families, which helps many of the mixed-status households we see in New York.
Your QDOT Checklist: Next Steps
Use this as your practical to-do list:
- Confirm citizenship status. Identify whether your spouse is a U.S. citizen, green-card holder, or other non-citizen. This determines whether a QDOT is needed at all.
- Inventory your assets. Total estimated value tells you how the New York exclusion and the $7,717,500 cliff apply to you.
- Choose a qualifying trustee. Line up a U.S. citizen individual or a U.S. bank/trust company to serve as the required trustee.
- Coordinate your full plan. Update your will (EPTL §3-2.1), power of attorney (GOL §5-1513), and health care proxy (Public Health Law Article 29-C) so they work together.
- Separate the two lanes. Book the estate/trust work with a New York attorney, and handle citizenship or green-card questions with an immigration attorney.
Frequently Asked Questions
Does my spouse becoming a U.S. citizen remove the need for a QDOT?
If a surviving spouse becomes a citizen before the estate-tax return is filed (and meets the federal residency rules), the standard marital deduction can apply. That is a citizenship question for the immigration side, not a trust-drafting question.
Is a QDOT revocable?
No. A QDOT is an irrevocable trust under EPTL Article 7, which is what allows it to perform its tax-deferral function. A revocable living trust does not provide this benefit.
Can my non-citizen spouse still inherit my New York home?
Yes. Non-resident and non-citizen status does not bar inheritance in New York. There are added documentation and tax-withholding steps, which is why coordinated planning helps.
Do I need two different lawyers?
Often, yes — one for New York estate and trust matters and one for federal immigration. They are separate areas of law, and pairing the right specialist with each issue protects your family.
Talk to the Right Specialist
For the New York estate and trust side — drafting a QDOT, navigating the 2026 estate-tax cliff, and coordinating your will, power of attorney, and health care proxy — schedule a consultation with Morgan Legal Group through our trusts overview page or book directly at calendly.com/russel-morgan/30min.
For the federal immigration side — green cards, naturalization, and family-based petitions — consult the family green card and immigration lawyer referenced above. Getting both lanes right is how mixed-status families in New York protect what they have built.
This article is general information, not legal advice. Estate planning depends on your individual circumstances.
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