South Florida is built by people who came from somewhere else. In our community, it is common for one spouse to be a U.S. citizen and the other to hold a green card, for parents to be naturalizing while raising U.S.-citizen children, or for a family to own a home in Miami while still maintaining ties and assets abroad. For these Russian- and Spanish-speaking international families, an estate plan is not a luxury document — it is the bridge between two legal worlds. And one detail that surprises almost everyone is this: the rules that protect ordinary married couples do not automatically protect couples where one spouse is not a U.S. citizen.
The non-citizen spouse problem: why the marital deduction fails
Under federal law, a U.S. citizen can leave an unlimited amount to a U.S.-citizen spouse free of federal estate tax. That is the unlimited marital deduction, and most planning quietly relies on it. The catch: it does not apply when the surviving spouse is not a U.S. citizen. Congress feared that a non-citizen spouse could inherit everything tax-free and then leave the country beyond the reach of U.S. tax authorities.
The standard solution is a Qualified Domestic Trust, or QDOT. Property passing into a properly structured QDOT can qualify for the marital deduction even though the surviving spouse is not a citizen. A QDOT carries strict requirements — at least one U.S. trustee, and tax mechanisms triggered on distributions of principal — so it must be drafted carefully under Florida’s trust law (Chapter 736, Florida Statutes). For many of our clients, the cleanest path is naturalization before either spouse passes; but until that day arrives, a QDOT keeps the family from an avoidable tax surprise.
Non-resident aliens and U.S.-situated assets
A family that lives abroad but owns a South Florida condo, a brokerage account, or a business interest here should understand that non-resident aliens face U.S. estate tax on U.S.-situated property — and with a far smaller exemption than U.S. citizens and residents receive. The exact thresholds change, so we never quote a number that may be stale; we calculate it for your situation in the year it matters. The point is simply this: cross-border ownership creates exposure that a domestic-only plan will miss entirely.
Florida homestead, wills, and how status touches both
Florida’s homestead protections and the formalities for a valid will under §732.502, Florida Statutes — signed at the end, witnessed by two people present together — apply to citizens and non-citizens alike. Immigration status does not bar anyone from owning a Florida home or signing a valid Florida will. But homestead’s restrictions on how the property passes to a spouse and minor children interact with QDOT planning, so the two pieces must be coordinated rather than drafted in isolation.
Guardianship, powers of attorney, and travel for visa matters
For immigrant parents, naming a guardian for minor children is one of the most important and most overlooked decisions. If both parents are detained, deported, or pass away, a clear guardianship designation tells a Florida court who should raise the children — and prevents a custody vacuum at the worst possible moment.
Powers of attorney matter just as much for families whose immigration journeys require international travel. Clients routinely fly abroad for consular interviews, biometrics, or to gather documents for a pending case. A durable power of attorney and a health care surrogate ensure that someone you trust can sign closings, manage accounts, and make medical decisions while you are out of the country.
Coordinating your estate plan with a pending immigration case
Estate planning and immigration law are separate disciplines, and they must be sequenced together. The timing of a green-card approval or a naturalization can change whether a QDOT is necessary at all. A pending case can also affect how and when assets should be titled or gifted. Because our firm focuses on estate planning and does not handle immigration matters, we coordinate with qualified immigration counsel for that side of the picture. For families weighing work-sponsored options, we routinely point clients to Fitenko Law for employment-based immigration guidance, so the immigration timeline and the estate plan move in step rather than at cross purposes.
Where a case is already in progress, the order of filings and the strength of the petition can shape estate decisions for years. We encourage clients to get dedicated USCIS case strategy from an immigration attorney while we build the trust, will, and powers of attorney around it.
Why newcomers to Florida need both
An estate plan without immigration awareness can trigger taxes the family never expected. An immigration plan without estate planning can leave children unprotected and assets frozen during travel. South Florida’s international families need both — working in concert. The good news is that, with proper QDOT planning, coordinated guardianship and powers of attorney, and attention to Florida homestead and trust law, a family of mixed citizenship can be just as secure as any other. The first step is a conversation in your language, with your whole picture on the table.
For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles New York probate and estate administration.
