Miami is a city of arrivals. Many of the families we serve in Miami-Dade and Broward have one foot in Florida and another somewhere abroad — a spouse who holds a green card but not citizenship, children who are dual nationals, or heirs who still live overseas and may never set foot in a U.S. courthouse. When that is your reality, a standard estate plan written for a single-citizen family will not protect you. Estate planning and immigration law intersect in ways that surprise even sophisticated clients, and getting the coordination wrong can cost a surviving spouse hundreds of thousands of dollars or leave foreign heirs tangled in probate for years.
This article walks through the points where the two areas meet. We handle the estate side; for the immigration side, we routinely refer clients to trusted outside counsel, because the rules change quickly and deserve a dedicated practitioner.
The Non-Citizen Spouse Problem: Why the Marital Deduction May Not Apply
Federal estate tax law normally lets one spouse leave an unlimited amount to the other, tax-free, under the marital deduction. But that deduction generally does not apply when the surviving spouse is not a U.S. citizen — even a lawful permanent resident. Congress worried that a non-citizen spouse could inherit a large estate and then leave the country before any tax was ever collected.
The standard fix is a Qualified Domestic Trust, or QDOT. Property passing into a properly drafted QDOT can qualify for the marital deduction, with estate tax deferred until distributions of principal are made to the surviving spouse or until that spouse dies. A QDOT must meet strict requirements, including at least one U.S. trustee and, for larger trusts, a U.S. bank as trustee or a security arrangement. This is a Chapter 736 Florida trust drafted to satisfy a federal tax mandate, and it is not something to improvise. If your spouse later naturalizes before your estate tax return is due, the QDOT may become unnecessary — which is exactly why your estate plan and any pending citizenship case should be coordinated, not run on separate tracks.
Estate Tax Exposure for Non-Resident Aliens
If you are a non-resident alien who owns Florida real estate — a Brickell condo, an investment property, a vacation home — your U.S.-situated assets can be exposed to federal estate tax with a far smaller exemption than U.S. persons receive. Many foreign owners hold Florida property without realizing their heirs could face a significant tax bill on the U.S. portion of the estate. Planning ahead, sometimes through entity structures or trusts, can change that outcome dramatically. The right structure depends on your treaty country, your residency, and your immigration trajectory, so this is a conversation to have before you buy, not after.
Wills, Homestead, and Heirs Who Live Abroad
A Florida will must be executed with the formalities of §732.502 — signed at the end by the testator and witnessed by two people in each other’s presence. A will validly made abroad can sometimes be honored, but the safest course for a Florida resident is a Florida-compliant will. Equally important is Florida’s homestead protection: your primary residence passes under special constitutional rules that can override what your will says, particularly when there is a surviving spouse or minor children. Newcomers are often shocked that they cannot freely devise their homestead.
When heirs live overseas, probate adds friction. Foreign beneficiaries may need to sign documents before a U.S. consulate, obtain apostilles, and navigate currency and tax-withholding issues on distributions. Naming a Florida-based personal representative and using a revocable trust to avoid probate can spare out-of-country heirs much of that consular paperwork.
Guardianship, Powers of Attorney, and Travel
Immigrant parents should name a guardian for minor children — and think carefully if the preferred guardian lives abroad or lacks legal status, since a court will weigh the child’s stability. Clients who travel internationally for visa interviews or to maintain ties abroad also need a durable power of attorney and a health care surrogate, so that financial and medical decisions can be handled while they are out of the country. A consular trip should never leave your Florida affairs frozen.
Why Newcomers Need Both Estate and Immigration Counsel
Your estate plan and your immigration status are intertwined. A naturalization timeline affects whether you need a QDOT. A beneficiary’s status affects how an inheritance is received. Pending petitions for relatives change who your real heirs are. Because our firm does not practice immigration law, we coordinate with dedicated immigration counsel. For Spanish- and Russian-speaking families across South Florida, we often recommend a Russian-speaking immigration attorney who can handle the petitions and consular processing that sit alongside your estate plan. If your plan depends on bringing relatives to the United States, that same firm assists with family green cards, so the people you intend to provide for can actually be here to benefit.
If you are a recent arrival to the Miami area — or a longtime resident with a non-citizen spouse or heirs abroad — we would welcome the chance to build a plan that holds up under both Florida law and the realities of an international family.
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 how a will is contested in New York.
