Miami is built by people who came from somewhere else. Many of our clients arrived on a visa, became permanent residents, and are now somewhere along the road to citizenship — or they are retirees who split their lives between Florida and another country. For these families, an estate plan is not just about who inherits the house. Your immigration status quietly changes how Florida and federal law treat your spouse, your children, and your assets. Getting both areas to work together matters, and overlooking the overlap can be expensive.
The non-citizen spouse problem: the marital deduction and QDOT trusts
Married couples often assume they can leave everything to each other free of federal estate tax. That assumption rests on the unlimited marital deduction — and that deduction generally does not apply when the surviving spouse is not a U.S. citizen. The concern is straightforward: a non-citizen spouse could inherit and then leave the country, beyond the reach of U.S. estate tax.
The standard fix is a Qualified Domestic Trust, or QDOT. Property passing into a properly drafted QDOT can qualify for the marital deduction even though the surviving spouse is not a citizen, deferring the tax until distributions are made from the trust. QDOTs carry strict requirements, including rules about at least one U.S. trustee. If you are a green-card holder married to a citizen, or a citizen married to a permanent resident, this is a conversation to have before, not after, a death in the family. In some cases the cleanest path is for the surviving spouse to naturalize within the allowed window — another reason your estate plan and your immigration timeline belong in the same room.
Estate tax exposure for non-resident, non-citizen owners
Retirees who hold a Florida condo but remain non-resident aliens for tax purposes face a different exposure entirely. Non-resident aliens are subject to U.S. estate tax on their U.S.-situated assets — including Florida real estate — and the exemption available to them is dramatically smaller than the one citizens and residents enjoy. A vacation property bought for cash can create a real tax bill for the heirs. Ownership structure, treaty provisions between the U.S. and your home country, and timing all affect the outcome, so non-residents buying Florida property should plan the purchase, not just the will.
How status affects your beneficiaries and your children
Immigration status touches the next generation too. A beneficiary who is undocumented or non-resident can still inherit, but distributions may need to be structured carefully to avoid complications. If you have minor children, your will is where you nominate a guardian under Florida law, and for immigrant families that choice carries extra weight — you may want a guardian who can care for the children here, plus instructions if a relative abroad is involved. A standalone preneed guardian designation and clear instructions in a Chapter 736 revocable trust keep these decisions in your hands rather than a court’s.
Florida’s homestead protections add another layer. Homestead shields your primary residence from most creditors and restricts how it can be devised when you have a spouse or minor children, regardless of citizenship. New arrivals are often surprised that they cannot simply leave the house to anyone they choose — Florida’s constitution has opinions.
Powers of attorney for clients traveling abroad
Immigration cases pull people out of the country — consular interviews, document gathering, family emergencies. If you are abroad when a closing, a tax deadline, or a medical decision arises, a durable power of attorney and a health care surrogate let someone you trust act in your absence. Clients with a pending green-card or naturalization case should have these documents in place before they travel, not scramble for them from overseas.
Coordinating your estate plan with a pending immigration case
Your will must meet Florida’s execution formalities under section 732.502 — signed, witnessed, and ideally self-proved — and your trust must comply with Chapter 736. None of that depends on citizenship. But the right strategy often does. A plan built around a QDOT looks different from one built around an imminent naturalization. Because our firm handles estate planning and probate, not immigration, we coordinate closely with immigration counsel so the two plans point in the same direction.
For the immigration side of the equation we regularly recommend the team at Fitenko Law. Whether you are a retiree weighing residency options, an entrepreneur exploring E-2 and EB-5 investor visas, or a family finishing a naturalization case, a Miami immigration attorney can confirm your status and timeline so we can build the estate plan around the facts.
Newcomers need both — and they need them together
If you are new to Florida, two pieces of advice rarely steer you wrong. First, get a real estate plan: a will, a revocable trust where appropriate, powers of attorney, and a health care surrogate, all drafted with your citizenship status in view. Second, keep immigration counsel in the loop so your status, your travel, and your timeline are accounted for. The families who do best in Miami are the ones whose lawyers talk to each other before there is a problem to solve.
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 Medicaid asset protection trusts.
