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.
