Estate Planning When Your Clients Have Mixed Immigration Status

Every family situation has unique complexities when it comes to estate planning. However, for Americans married to non-U.S. citizens, navigating the legal landscape requires additional considerations. From understanding inheritance rights to addressing federal estate and gift taxes, providing estate planning advice to these clients demands a strategic and well-informed approach.

Here’s what legal and trust professionals need to know to guide their clients effectively.

The Foundation Remains the Same

Regardless of citizenship status, the foundational steps of estate planning apply to all couples:

• Drafting Wills or Living Trusts: Both spouses should have valid wills or living trusts to ensure their assets in the U.S. are distributed according to their wishes.

• Designating Beneficiaries: Retirement accounts, life insurance policies, and other financial instruments should have clearly designated beneficiaries.

• Establishing Durable Powers of Attorney: It is crucial to appoint trusted individuals to make decisions in case of incapacity in both finances and healthcare.

Can Non-U.S. Citizens Inherit Property?

Your clients may ask you whether a non-U.S. citizen spouse or issue can inherit property. The answer is yes. Noncitizens can inherit property in the United States just as citizens can. This means that when drafting a will or trust or naming beneficiaries for retirement accounts, there’s no legal barrier to naming a non-U.S. citizen spouse as an heir.

The Federal Estate and Gift Tax: A Key Consideration

While many families fall below the federal estate and gift tax threshold—which, as of 2025, applies to estates exceeding $13.99 million—those with significant assets must be aware of specific rules affecting noncitizen spouses.

1. Unlimited Marital Deduction: U.S. citizens can leave unlimited assets to their spouse without incurring federal estate tax. However, this unlimited marital deduction does not apply if the surviving spouse isn’t a U.S. citizen, even if they are a permanent resident.

2. Gift Tax Limitations: Gifts to a U.S. citizen spouse are generally tax-free. However, for noncitizen spouses, tax-free gifts are capped at $190,000 per year (as of 2025), adjusted annually for inflation.

Strategies to Mitigate Estate Tax Exposure

For clients with considerable wealth, there are strategies to reduce potential estate tax liabilities, such as:

• Pursuing Citizenship: If a noncitizen spouse becomes a U.S. citizen before the estate tax return is due (generally nine months after death, with possible extensions), they will qualify for the unlimited marital deduction. However, this requires a proactive approach, as the naturalization process can be lengthy.

• Establishing a Qualified Domestic Trust (QDOT): A QDOT allows a noncitize n spouse to benefit from a trust’s income without immediate estate tax implications. The trust must be established before the estate tax return is due, requiring a U.S. citizen or corporation as trustee. While income distributions are tax-free, any principal distributions may trigger estate taxes unless they meet specific hardship criteria.

Cross-Border Considerations: Beyond the U.S.

Estate planning for couples with international ties often involves navigating complex cross-border laws, such as:

• Foreign Property and Succession Laws: If a noncitizen spouse owns property abroad, the laws of that country will dictate how those assets are transferred. Some countries don’t recognize U.S. wills, necessitating “geographic wills” that comply with local laws.

• International Tax Treaties: The U.S. has estate and gift tax treaties with 15 countries, which can impact taxation and help avoid double taxation. Understanding these treaties is essential for comprehensive planning.

• Forced Heirship Laws: In many civil law countries, forced heirship rules dictate how assets must be distributed, potentially conflicting with U.S.-based estate plans.

Collaborating with Legal and Financial Experts

Given the complexities involved, estate planning for Americans married to non-U.S. citizens benefits from a multidisciplinary approach. Collaborating with immigration attorneys, tax professionals, and international estate planners ensures that all legal angles are covered, and that the estate plan aligns with U.S. and foreign laws.

Final Thoughts: Proactive Planning is Key

Estate planning for mixed-citizenship couples doesn’t have to be daunting. By understanding the unique legal challenges and leveraging available strategies like QDOTs and tax treaties, lawyers can help clients secure their financial legacies and mitigate fiduciary risk. Proactive, informed planning ensures that your client’s assets and decedents are protected, regardless of borders or nationality.

For legal professionals who need to establish heirship for probate purposes, HeirSearch offers unparalleled, multilingual and global service and commitment, with a 97% success rate.

Contact us to learn more about our process and how we can support your needs.

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