Miami is built by people who came from somewhere else. Whether you arrived last year on an investor visa, recently took the oath of citizenship, or retired here after decades of building a life abroad, your estate plan has to account for something most online templates ignore: your immigration status, and your spouse’s, change how Florida and federal law treat your money, your home, and your family.
This is one of the most overlooked intersections in estate planning. A will that works perfectly for a U.S.-citizen couple can create a six- or seven-figure tax problem for a couple where one spouse is a green-card holder. Below are the issues that matter most for non-citizen and newly naturalized clients in South Florida.
The non-citizen spouse problem: the unlimited marital deduction and QDOT trusts
When a U.S. citizen dies and leaves assets to a U.S.-citizen spouse, the unlimited marital deduction lets those assets pass free of federal estate tax. But if your surviving spouse is not a U.S. citizen — even a lawful permanent resident with a green card — that unlimited deduction generally does not apply. The concern is that a non-citizen spouse could leave the country with the inheritance, beyond the reach of U.S. estate tax.
The standard solution is a Qualified Domestic Trust (QDOT). Property passing into a properly structured QDOT can qualify for the marital deduction, deferring estate tax until distributions of principal are made to the surviving spouse. For Miami couples where one partner has not naturalized, building a QDOT into the plan — rather than discovering the issue after a death — can preserve assets that would otherwise be taxed. If naturalization is realistically on the horizon, the timing of that case and the estate plan should be coordinated together.
Estate tax exposure for non-resident aliens
Citizens and U.S.-domiciled residents are taxed on their worldwide estates and benefit from a large federal exemption. A non-resident alien — someone who is neither a citizen nor domiciled in the U.S. — is taxed only on U.S.-situated assets, but with a dramatically smaller exemption. For someone who buys a Miami condo or holds a U.S. brokerage account while living primarily abroad, this can mean meaningful estate tax exposure on assets they assumed were modest. Foreign retirees holding Florida real estate should have this reviewed before, not after, they acquire more property here.
Florida homestead, wills, and trusts still apply to you
Immigration status does not change the fact that Florida law governs property you own here. Florida’s homestead protections — creditor protection and restrictions on how a primary residence can be devised when you have a spouse or minor children — apply regardless of citizenship. A valid Florida will must meet the execution formalities of §732.502 (signed by the testator and two witnesses, all present together). Revocable and irrevocable trusts are governed by Florida’s Trust Code, Chapter 736, and remain one of the cleanest ways to avoid probate and to layer in a QDOT or planning for non-citizen beneficiaries.
Beneficiaries, guardianship, and family abroad
Naming beneficiaries who live overseas, or who are themselves on pending immigration cases, raises practical questions about how and when they can receive an inheritance. Just as important: if you have minor children, a guardianship designation in your estate plan tells a Florida court whom you trust to raise them — critical for immigrant families whose closest relatives may be in another country and unable to step in quickly. Without that designation, the court decides.
Powers of attorney for clients traveling for visa matters
Immigration cases routinely require travel — consular interviews, biometrics abroad, family emergencies in your home country. A durable power of attorney and a designated health care surrogate ensure that if you are out of the country or unavailable, someone you trust can manage your Florida affairs, sign documents, and make medical decisions. For clients juggling a pending green-card or naturalization case, these documents are not optional paperwork; they are continuity insurance.
Why newcomers need both an estate plan and immigration counsel
Here is the honest part: we handle the estate-planning side, not the immigration side. The two have to be coordinated, because the status of a visa, green card, or naturalization case directly changes the tax and beneficiary analysis above. For the immigration work itself, we recommend a Miami immigration attorney who works with the same South Florida community we serve. Clients building or buying a business here often need E-2 and EB-5 investor visas handled in parallel with their estate plan, so the ownership structure and the immigration filing point in the same direction rather than working against each other.
If you are new to Florida, recently naturalized, or retiring here from abroad, sit down with an estate-planning attorney and an immigration attorney together. A few hours of coordinated planning now can spare your family a tax bill — and a legal tangle — later.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles Medicaid asset protection trusts.
