South Florida is home to one of the most internationally connected populations in the United States. Many of our clients are dual citizens, lawful permanent residents, non-resident investors, or families with members at different stages of the immigration process. For these households, a Florida estate plan is not a simple fill-in-the-blank exercise. Immigration status touches nearly every major estate planning decision, and getting it wrong can cost a surviving spouse hundreds of thousands of dollars or leave children without a clear guardian. Below are the issues we see most often, and why newcomers to Florida should secure both estate planning and immigration counsel early.
The Non-Citizen Spouse Problem and QDOT Trusts
One of the most overlooked traps in cross-border estate planning is the federal unlimited marital deduction. Spouses who are U.S. citizens can generally pass assets to one another at death free of federal estate tax. But that unlimited deduction is not available when the surviving spouse is not a U.S. citizen, even if that spouse is a green-card holder living permanently in Miami or Fort Lauderdale.
The tool Congress created to address this is the Qualified Domestic Trust, or QDOT. Property passing into a properly drafted QDOT can defer the estate tax that would otherwise apply, allowing the non-citizen surviving spouse to benefit from the assets during their lifetime. A QDOT must meet strict requirements, including having at least one U.S. trustee with authority over distributions. For couples where one spouse holds a foreign passport, building a QDOT provision into the plan is often essential rather than optional.
Estate Tax Exposure for Non-Resident Aliens
Immigration status also changes the tax base itself. A person who is not a U.S. citizen and not domiciled in the United States, a non-resident alien for estate tax purposes, is taxed only on U.S.-situated assets such as Florida real estate and shares of U.S. corporations. Critically, non-resident aliens receive a far smaller estate tax exemption than citizens or domiciliaries. A foreign national who buys a South Florida condo as an investment may unknowingly be creating a significant U.S. estate tax liability for their heirs. Investors entering the country through structures such as E-2 and EB-5 investor visas should coordinate their visa strategy with how title to U.S. assets is held, because the two decisions are deeply intertwined.
Florida Homestead, Wills, and Trusts Still Apply
Regardless of citizenship, anyone who owns or resides in Florida property benefits from Florida’s protections and must follow Florida formalities. The homestead protections in the Florida Constitution shield a primary residence from most creditors and carry special rules on how it can be devised. A valid Florida will must meet the execution requirements of section 732.502, Florida Statutes, including signature and two-witness formalities. Revocable and irrevocable trusts are governed by the Florida Trust Code in Chapter 736. Non-citizens can serve as beneficiaries and, in many cases, as fiduciaries, but naming a foreign trustee or personal representative raises practical and tax questions that should be reviewed before signing.
Guardianship, Powers of Attorney, and Travel
For immigrant families with minor children, naming a guardian is one of the most urgent decisions. If parents are detained, deported, or simply traveling abroad for a consular interview, a clear guardian designation and a separate document authorizing temporary care can prevent a child from entering the state system. We strongly encourage clients to name both a primary and an alternate guardian, and to discuss the practical citizenship and residency of each candidate.
Powers of attorney deserve the same attention. Clients frequently leave the country for months to attend to visa matters, gather documents, or wait out processing abroad. A durable power of attorney and a designation of health care surrogate ensure that financial and medical decisions can be handled in Florida while the client is overseas. Without them, a family may face a court guardianship proceeding simply because the signer was unreachable.
Coordinating With a Pending Immigration Case
An estate plan should never be drafted in isolation from a pending green-card or naturalization case. A client who naturalizes, for example, may suddenly qualify for the unlimited marital deduction and no longer need a QDOT. Timing distributions, gifts, and the transfer of foreign assets can also affect a pending application. Because our firm handles estate planning and not immigration, we routinely coordinate with a Florida immigration attorney so that both sides of the plan move in step. We recommend Fitenko Law for the immigration side when clients need that counsel.
The Bottom Line for Newcomers
If you have recently moved to South Florida, hold citizenship in another country, or have a spouse or children with a different immigration status than your own, you likely need two professionals working together: an estate planning attorney to protect your assets and your family under Florida law, and an immigration attorney to safeguard your status and your future eligibility. Building both relationships early, before a death, a move, or a filing deadline forces the issue, is the single best step you can take to protect the people you love.
- Review whether a QDOT is needed if your spouse is not a U.S. citizen.
- Confirm how Florida estate tax and non-resident rules apply to U.S.-situated property you own.
- Execute a Florida-compliant will, durable power of attorney, and health care surrogate before any extended travel abroad.
- Name primary and alternate guardians for minor children.
- Coordinate your estate plan with any pending immigration matter.
For more on our Florida practice, see our overview of Florida estate planning. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.