Category: Estate Planning & ...

Estate planning for a married couple gets more complicated when one spouse is not a U.S. citizen. The issue is not just who inherits what. Federal tax rules and Florida spousal protections can change how property passes at death, what rights a surviving spouse keeps, and whether a plan works as intended.

Why Non-Citizen Spouse Planning Is Different

Federal estate tax law usually blocks the unlimited marital deduction when assets pass to a surviving spouse who is not a U.S. citizen. That deduction usually lets assets pass to a surviving spouse without estate tax at the first death. When citizenship is missing, that rule can change. 

In some cases, a qualified domestic trust, often called a QDOT, may preserve the marital deduction if the trust meets strict requirements and the proper election is made. For example, at least one trustee must be a U.S. citizen or domestic corporation, and certain principal distributions can trigger tax.

That does not mean every Florida couple needs a QDOT. It does mean the plan should account for citizenship status instead of assuming a standard will or trust will cover the problem.

Account for Florida Spousal Rights

Florida law gives a surviving spouse important rights, and those rights can affect the final plan no matter what a will says. A surviving spouse of a Florida decedent may claim an elective share, which equals 30% of the elective estate. 

Florida also has strict homestead rules. If a person dies owning a Florida homestead and leaves behind a spouse or minor child, the home cannot always be devised freely. In some situations, the surviving spouse may receive a life estate or elect a one-half tenant-in-common interest instead.

Those rules matter even more in blended families, second marriages, and cross-border households. Beneficiary designations, deed choices, and trust funding should align with the broader plan. Florida law also allows certain spousal rights to be waived in a written agreement signed with two witnesses, which can matter in premarital or marital planning.

Start the Conversation Before a Crisis

A workable plan often includes more than one document. Wills, trusts, powers of attorney, living wills, and health care designations may all need to work together. At Wickersham & Bowers, we help Florida families build estate plans that reflect real family structure, property ownership, and future probate concerns. If you want to discuss planning for a non-U.S. citizen spouse, call us at 386-252-3000 or reach out through our contact form.

Estate tax planning looked very different a year ago. Families were racing to act before a looming deadline, the feared “sunset” that would have cut federal exemptions roughly in half. Then Congress stepped in. 

The One Big Beautiful Bill, signed on July 4, 2025, set the federal estate and gift tax exemption at $15 million per individual starting January 1, 2026. With proper planning, many married couples can shield up to $30 million. It’s permanent, indexed for inflation after 2027, and removes the uncertainty that drove so much urgency in prior years.

So does that mean married couples in Florida can relax? Not exactly. A larger exemption doesn’t make planning irrelevant; it changes the math, but the tools still matter. One worth knowing is the Spousal Lifetime Access Trust, or SLAT.

How a SLAT Works in Plain Terms

Think of it as a one-way transfer with a built-in safety net.

One spouse, the donor, moves assets into an irrevocable trust. Once funded, those assets leave the donor’s taxable estate for good. “Irrevocable” is the keyword: There’s no reversing it later if circumstances change.

What makes couples willing to take that leap? The other spouse, called the beneficiary, can still receive distributions from the trust. Medical bills, everyday living costs, and education expenses. That indirect access keeps the wealth in the family’s orbit even after the legal ownership is gone.

Then there’s the growth angle. Anything those trust assets earn or appreciate stays outside the taxable estate. A business interest that doubles in value, real estate that climbs over 20 years; that upside builds without adding to the estate tax exposure. For Florida families with appreciating assets, the difference can be substantial.

What Can Go Wrong

If the beneficiary spouse dies, that access to trust assets ends. The same goes for divorce. The donor loses their indirect connection to those funds immediately.

Couples who want both spouses to fund separate SLATs for each other face a specific legal trap: the Reciprocal Trust Doctrine. The IRS can treat mirror-image trusts that are too similar in terms and structure as if the gifts were never made at all. 

Talk to Our Team About Your Situation

No single estate planning strategy fits every family. Whether a SLAT makes sense depends on your assets, your marriage, your long-term financial needs, and goals that are specific to you.

At Wickersham & Bowers, we work with individuals and families across Florida on trusts, wills, and estate planning that’s built around real circumstances. Call us at 386-252-3000 or fill out our contact form to set up a consultation.

When a married couple dies within a short time of each other, executors face nuanced federal estate tax decisions. Two important tools in this space are the portability election under Internal Revenue Code § 2010(c) and reverse QTIP elections for generation-skipping transfer (GST) purposes. These elections affect how much of each spouse’s unified credit (commonly called the estate tax exemption) and GST tax exemption survives to benefit the family. 

In this post, we explain these concepts and how they interact for estates with compressed timelines.

Portability

Under federal law, each person has a unified credit or applicable exclusion amount that shelters a portion of their estate from federal estate tax. If the first spouse to die does not use their full exemption, the unused portion, the Deceased Spousal Unused Exclusion (DSUE) amount, may be transferred to the surviving spouse through a portability election.

To elect portability, the executor files Form 706 by the estate tax deadline, usually nine months after death, and may request a six-month extension. A properly prepared, on-time return locks in the election, and it is rarely reversible. The transferred unused exclusion (DSUE) then becomes available to the surviving spouse to offset taxable gifts made during life or property included in their later estate.

Reverse-QTIP Trusts for GST Tax Planning

A Qualified Terminable Interest Property (QTIP) trust allows property to qualify for the federal marital deduction while keeping it in trust for beneficiaries other than the surviving spouse. Normally, assets in a QTIP trust are included in the surviving spouse’s estate and thus get a new step-up in basis at their death. 

For GST tax planning, a reverse QTIP election can be made so that the first spouse’s GST tax exemption applies to the trust. This preserves the GST exemption for transfers to grandchildren down the line, even though the GST exemption itself is not portable.

Make the Right Filing Decisions Early

When two spouses pass within a short window, early tax return elections can directly affect how much federal estate and GST exemption survives for the family. Choices tied to § 2010(c) portability and any reverse QTIP treatment carry lasting consequences once filed. If you are handling a Florida estate under tight timelines, we can walk through the options with you. Call 386-252-3000 or use our contact form to start the conversation.

Owning a Florida LLC or closely held business adds a layer to estate planning that many standard wills and trusts do not cover. Your plan might say who inherits your ownership, but your operating agreement can control who steps into your shoes as a “member” (an owner with voting/management rights).

Florida law also treats a member’s death as a dissociation event unless the governing documents address what happens next. This post explains how to line up your estate documents with the business documents, so your family and co-owners do not face avoidable disruption.

Know What Transfers at Death (And What Does Not)

Florida’s LLC statute distinguishes a “transferable interest” from full membership rights. A transferable interest generally tracks the right to receive distributions, not the right to manage the company.

That distinction matters because a beneficiary who inherits an interest might receive money but still lack authority to vote, access information, or run day-to-day operations unless the operating agreement allows admission as a member. The operating agreement binds members and can bind transferees as well, so the document can shape outcomes even when someone never signed it.

Build Transfer Restrictions and Succession Rules That Match Your Estate Plan

Many agreements include transfer restrictions; for example, requiring approval before a new owner joins. Florida law supports these restrictions and can treat a transfer that violates them as ineffective when the person has notice of the restriction.

You can reduce friction by coordinating:

• Operating agreement succession language: Admission standards for heirs, valuation method, and buyout triggers.
• A buy-sell structure: Who can purchase the interest, timelines, and funding (often insurance).
• Your will or trust: Who receives the interest and who carries authority to act quickly.

Florida law also lets a deceased member’s legal representative exercise the member’s rights to settle the estate, including any power the member had to give a transferee the right to become a member. Clear documents make that authority easier to use.

Call Us to Coordinate the Documents Before A Crisis

Wickersham & Bowers helps Florida clients build estate plans using tools like wills, trusts, and powers of attorney, and we also guide families through probate when needed. If you own an LLC or closely held business, we can review your operating agreement alongside your estate plan and flag gaps that could cause delays or disputes. Call us at 386-252-3000 or fill out our contact form.

Most families don’t expect a legal fight after losing someone, yet many disputes start with something surprisingly simple: unclear beneficiary language. A will or trust might look fine on paper, but once people start applying it to actual property, gaps appear. Those gaps often turn into full-blown lawsuits.

Where Ambiguity Creeps In

Most of these issues come from shortcuts, such as using old templates, relying on vague descriptions, or assuming everyone will “just know” what the person intended. For example, if the decedent had written “the family home” but owns more than one property, which one transfers? Similarly, if they say, “divide equally among my children,” does that include stepchildren, estranged children, and a child who passed away?

Blended families run into this all the time. A phrase that once fit the family may not fit it years later. If the document never gets updated, the wording stays frozen while the family situation keeps changing.

How Courts Approach These Disputes

When a dispute lands in court, judges start with the written document. They try to honor what’s on the page, not what family members believe the decedent “would have wanted.” If the language is unclear, courts sometimes look at outside evidence, including drafts, notes, and emails, but only to interpret the wording, not to rewrite it.

If the ambiguity is severe enough, a court may set aside the unclear provision entirely. When that happens, the asset follows default probate rules, which can send property to people the decedent never intended to benefit.

How to Reduce the Risk Before It Starts

Most of these problems are avoidable:

• Use full legal names
• Specify addresses
• List account numbers when possible
• Lay out what happens if a beneficiary dies first or chooses not to inherit
• Update the plan whenever major life events occur

Working with an attorney who drafts with real-world disputes in mind can save surviving family members from stress, cost, and conflict later.

Talk With Our Team

At Wickersham & Bowers, we help clients put together estate plans that hold up when families need them most. If you’d like to review or update your documents, call 386-252-3000 or reach us through our contact form. We’re here to help you protect your plans and your family’s peace of mind.

Under Florida law, a surviving spouse cannot be wholly disinherited by the deceased spouse. Florida’s elective share law provides a recourse for a surviving spouse to elect to take a certain percentage of the decedent’s estate, even if the will or trust itself left the surviving spouse with nothing. 

This is particularly important in second marriages and blended families because children from prior relationships and new spouses often have competing expectations. A surviving spouse who has been disinherited may rely on the elective share to maintain financial security and avoid ending up destitute.

How Elective Share Works

Florida sets the elective share at 30 percent of what it calls the “elective estate.” This estate includes the probate estate, the homestead, and many non-probate transfers such as pay-on-death accounts, jointly held property, and assets held in a revocable trust. In some situations, property a person transferred during their lifetime can still count if they kept control or the ability to change the asset.

Once a surviving spouse chooses to make an election, the personal representative must place a value on every asset included in the elective estate and determine the spouse’s 30 percent share. Because this calculation comes first, other heirs may receive less than they expected, even if the will or trust says otherwise.

The timing rules are strict. A spouse must file the election within six months of receiving the notice of administration or within two years of the death, whichever comes first. Courts can extend the deadline, but only when the spouse shows good reason. Since the timeline starts running as soon as notice is served, a surviving spouse should contact an attorney as early as possible.

We Can Help You Protect Your Family’s Future

Florida’s elective share can reshape an estate plan in ways many people don’t expect. When it isn’t addressed early, it can create tension between a surviving spouse and other family members. Good planning helps prevent those problems and keeps everyone on the same page.

At Wickersham & Bowers, we work with Florida families to create wills, trusts, and agreements that hold up when it counts. To review or update your plan, give us a call at 386-252-3000 and schedule a time to talk.