Yes, you can make a valid New York will when your spouse is not a U.S. citizen, and your spouse can inherit from you under that will. New York law does not bar non-citizens or non-residents from inheriting property here. The catch is purely tax-related: the federal unlimited marital deduction does not apply to a non-citizen surviving spouse, so transfers that would pass tax-free to a citizen spouse can be exposed to estate tax instead. The standard fix is a QDOT (Qualified Domestic Trust). Below is a practical checklist of the next steps to take so your will, your trusts, and your family’s immigration picture all line up.
Why Citizenship Status Matters in a New York Will
A will in New York must meet the formalities in EPTL §3-2.1: the testator signs at the end, declares to the witnesses that the document is the will (publication), and two attesting witnesses sign. If you die without a valid will, EPTL Article 4 (intestacy) decides who inherits, which often is not what mixed-status couples want. So step one is always a properly executed will. See our guide to will execution for the signing rules in detail.
Citizenship enters the picture at the tax layer. Normally a spouse can inherit any amount estate-tax-free. But when the surviving spouse is a non-citizen, that deduction is unavailable, because the government cannot guarantee the assets stay in the U.S. tax system if that spouse later moves abroad. A QDOT solves this by holding the inheritance in trust with a U.S. trustee, preserving the deferral.
The Practical Checklist: Your Next Steps
Work through these in order:
- Execute a valid will under EPTL §3-2.1 (two witnesses, sign at the end, publication).
- Add a QDOT if your spouse is not a U.S. citizen and your estate is large enough to face estate tax, so the marital deferral is preserved.
- Consider trusts under EPTL Article 7. A revocable living trust avoids probate in the NY Surrogate’s Court (but gives no estate-tax savings); an irrevocable trust can reduce tax, protect assets, or plan for Medicaid (note the 5-year look-back). A special needs trust under EPTL 7-1.12 protects a disabled beneficiary’s benefits.
- Sign a power of attorney (durable, 2021 statutory short form under GOL §5-1513) and a health care proxy (Public Health Law Article 29-C). A living will records your end-of-life wishes alongside the proxy.
- Review the New York estate tax math (see the table below).
- Separate the immigration question and route it to the right specialist.
- Update documents after life changes with a proper codicil or amendment rather than handwriting on the original.
New York Estate Tax: The 2026 Numbers
New York has its own estate tax with a feature that surprises many families, the “cliff.”
| Item | 2026 Figure |
|---|---|
| Basic exclusion amount | $7,350,000 |
| Cliff threshold (105%) | $7,717,500 |
| Estate over the cliff | Loses the entire exemption |
If your estate exceeds $7,717,500, you do not just pay tax on the overage, you lose the exemption altogether and the whole estate becomes taxable. For couples with a non-citizen spouse, this makes QDOT planning even more important, because the marital deferral can be the difference between staying under the cliff and falling over it.
The Immigration Side: Federal Law Is a Separate Track
Estate planning is state law; immigration is federal law, governed by USCIS. They are different practice areas, and the honest answer is to use the right specialist for each. Your New York will and your spouse’s green-card process are handled by two different professionals.
Because immigration is federal, an immigration attorney can represent families located in any state, including New York clients. If your spouse is pursuing a marriage-based green card, that is exactly the kind of matter to send to an immigration specialist. We work with a marriage-based green card lawyer in Florida (Fitenko Law), who serves Russian- and Ukrainian-speaking families, for the federal immigration side, while our firm handles the New York estate and will matters. It is an honest cross-referral, not legal advice on your case: we do not predict approvals, quote government fees, or estimate processing times, and neither should anyone else.
Frequently Asked Questions
Can a non-citizen spouse inherit under my New York will?
Yes. Non-citizen and non-resident status does not bar inheritance of New York property. There may be extra documentation and tax-withholding steps, but your spouse can inherit.
Do I need a QDOT if my spouse is a green-card holder?
Possibly. The unlimited marital deduction is tied to citizenship, not residency, so even a lawful permanent resident is treated as a non-citizen for this rule. A QDOT preserves the deferral until your spouse becomes a citizen or the trust pays out.
Does becoming a citizen change my estate plan?
It can. If your spouse naturalizes, the marital deduction may become available and a QDOT may no longer be necessary. Revisit your plan after any change in status.
Can one attorney handle both the will and the immigration case?
Usually not, because they are separate practice areas. Use an estate attorney for the New York will and an immigration attorney for the federal green-card process.
Next Steps
For the New York estate and will side, including a QDOT, trusts, and powers of attorney, consult Morgan Legal Group. You can review our will execution guide or schedule a consultation at calendly.com/russel-morgan/30min.
For the federal immigration side, including a marriage-based green card, consult the immigration specialist referenced above. Getting both tracks right, with the right professional on each, is the surest way to protect your spouse and your family.
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