Miami is one of the most international communities in the United States. Many families here include a green-card holder, a spouse on a visa, children born abroad, or relatives living overseas who stand to inherit. When a household crosses borders, an ordinary estate plan is not enough. Citizenship and immigration status can change how property passes, how much estate tax is owed, and whether a surviving spouse keeps the protections most Florida residents take for granted. This article explains where estate planning and immigration law intersect, and why newcomers to South Florida usually need counsel in both areas.
The Non-Citizen Spouse and the Marital Deduction Trap
Federal law normally lets one spouse leave an unlimited amount to the other, free of estate tax, through the unlimited marital deduction. There is a critical exception: that deduction is generally not available when the surviving spouse is not a U.S. citizen. The concern behind the rule is that a non-citizen spouse could inherit and then leave the country before the property is ever taxed.
The standard solution is a Qualified Domestic Trust, or QDOT. When assets pass into a properly drafted QDOT, the marital deduction is preserved and estate tax is deferred until distributions of principal are made. A QDOT carries strict requirements — including a U.S. trustee and rules about withholding — so it must be drafted carefully under Florida’s Trust Code, Chapter 736, Florida Statutes. For couples in Miami where one spouse is a lawful permanent resident or visa holder, building a QDOT into the plan is often the difference between deferring a tax bill and triggering one at death.
Estate Tax Exposure for Non-Resident Non-Citizens
A person who is neither a U.S. citizen nor a U.S. domiciliary faces a very different estate tax picture. Non-resident aliens are taxed only on assets considered U.S.-situated — most commonly U.S. real estate and shares of U.S. corporations — but they receive a far smaller estate tax exemption than citizens and domiciled residents do. A foreign investor who buys a Miami condo, or a parent abroad who holds a U.S. brokerage account, can create unexpected exposure for heirs. Holding structures, lifetime gifting, and treaty provisions can all matter, and the right approach depends on the specific facts and the client’s home country.
Florida Homestead and Inheritance Across Borders
Florida’s homestead protections — constitutional creditor protection and favorable transfer rules at death — apply based on residency and the nature of the property, not on citizenship. A non-citizen who genuinely makes Florida home can claim homestead protection on a primary residence. But homestead also restricts how a married person or a parent of a minor child can leave the home, and those restrictions apply regardless of immigration status. A will that ignores them simply will not control the property. Any will in Florida must still meet the execution formalities of section 732.502, Florida Statutes — signed in the presence of two witnesses who also sign — and a will drafted abroad rarely satisfies those rules.
Children, Guardianship, and Powers of Attorney
Immigrant parents should name a guardian for minor children in their estate documents, and should think carefully about where that guardian lives and whether the children could remain in the United States. Coordinating these designations with the family’s broader immigration situation is essential, and a guardianship choice that overlooks immigration consequences can leave children in limbo.
Powers of attorney deserve special attention for clients who travel abroad. When a green-card holder or visa applicant must leave the country for a consular interview, biometrics, or to await a decision, a durable power of attorney and a health care surrogate let someone in Florida manage finances, property, and medical decisions in their absence. For the immigration matter itself, we recommend working with a Florida immigration attorney, since our firm focuses on estate planning rather than immigration cases.
Coordinating Your Estate Plan With a Pending Immigration Case
The two areas of law move together more than people expect. Becoming a citizen can remove the QDOT requirement entirely, so a plan built around a pending naturalization should anticipate that change. A client pursuing U.S. citizenship and naturalization may want documents that adjust automatically once status changes, rather than a plan that must be rewritten. Likewise, a pending green-card case can affect domicile, tax residency, and which assets are exposed. Because immigration counsel and estate counsel each see only part of the picture, the strongest plans come from the two working in tandem.
Newcomers to Florida Need Both
If you have recently moved to the Miami area, married across citizenship lines, or have heirs living abroad, do not assume the documents you brought with you still work here. Florida’s homestead and execution rules, the QDOT requirement for non-citizen spouses, and the special tax treatment of non-resident owners all create traps that a generic plan misses. Pair an experienced Florida estate planning attorney with qualified immigration counsel, and you protect both your family and your status — together.
This article is general information, not legal advice. Speak with a qualified attorney about your specific situation.
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 Article 81 guardianship in New York.
