Immigration Status & Inheritance Rights in New York

Your immigration status does not decide whether you can inherit in New York. Green-card holders, undocumented relatives, and heirs living abroad can all receive property from a New York estate — non-resident or non-citizen status does not bar inheritance. What status does change is the paperwork, the tax treatment, and which professional you need at each step. New York estate and probate law is state law; immigration is federal law. The two never merge, and the honest path for a mixed-status family is to use the right specialist for each side.

Let’s follow a typical Manhattan family to see where status actually matters.

Meet the Petrov Family

Anna is a U.S. citizen. Her husband, Dmitri, is a lawful permanent resident (green-card holder) — not yet a citizen. Anna’s elderly mother is a green-card holder living with them, and Anna has a brother still living overseas who would be an heir if anything happened to the mother. Three people in one household, three different statuses. When Anna asks “who inherits what, and what gets taxed?”, every answer turns on these distinctions.

The Non-Citizen Spouse Problem

Here is the trap most couples miss. When one U.S. citizen spouse dies and leaves everything to the other, the unlimited marital deduction normally lets the surviving spouse inherit with no immediate federal estate tax. But that deduction does not apply when the surviving spouse is not a U.S. citizen.

So if Anna died first and left her estate to Dmitri (a green-card holder, not a citizen), the marital deduction would not shelter the transfer. The standard fix is a QDOT — a Qualified Domestic Trust. Property passes into the QDOT for the non-citizen spouse’s benefit, deferring the estate tax until distributions or the spouse’s death. It is a planning tool, not an afterthought; it has to be set up correctly while both spouses are alive.

This is purely a New York / federal estate-tax question. Dmitri’s green card is relevant only because it defines his tax status — not because immigration law governs the inheritance.

Foreign Heirs Can Inherit — With Extra Steps

Anna’s brother overseas can absolutely inherit New York property. Foreign and non-resident beneficiaries are not shut out of the New York Surrogate’s Court, where probate is filed. But practically, a foreign heir adds documentation and tax-withholding steps: identity and address verification, sometimes consular paperwork, and withholding the estate may have to manage before funds leave the country. An executor’s duties grow heavier with international beneficiaries, and disputes among relatives in different countries are a common source of a contested probate.

A quick map of who handles what:

Situation	Practice area	Specialist
Will, trust, QDOT, probate filing	NY state law	NY estate/probate attorney
Green card, visa, citizenship, status questions	U.S. federal law	Immigration attorney
Foreign heir documentation & withholding	NY probate + tax	Estate attorney (with tax support)

Building the Plan: Wills and Trusts

For each adult in the household, the foundation is the same regardless of status. A valid New York will under EPTL §3-2.1 requires two attesting witnesses, the testator signing at the end, and publication. With no will, EPTL Article 4 (intestacy) decides distribution — rarely what an immigrant family actually wants.

Trusts (EPTL Article 7) add options. A revocable living trust avoids probate but offers no estate-tax savings. An irrevocable trust can reduce tax, protect assets, and support Medicaid planning — but watch the 5-year look-back. If a household member has a disability, a special needs trust (EPTL 7-1.12) preserves benefits. Round it out with a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and a health care proxy (Public Health Law Article 29-C). For a small estate, a small estate affidavit may avoid full probate entirely.

One number to respect: the 2026 New York estate-tax basic exclusion is $7,350,000, with a cliff at 105% ($7,717,500) — an estate over the cliff loses the entire exemption, not just the excess.

When to Bring in an Immigration Attorney

None of the above changes anyone’s immigration status, and a probate attorney should never pretend it does. If the Petrovs need help with Dmitri’s path to citizenship, the mother’s status, or the overseas brother’s options, that is federal immigration work — a separate practice.

Because immigration is federal, an immigration attorney can represent New York families from anywhere in the country. For the immigration side, we honestly refer families to a Miami-based immigration law firm — Fitenko Law, which serves Russian- and Ukrainian-speaking families across Miami and South Florida. We handle the New York estate and probate side; they handle the federal immigration side. Two specialists, one coordinated family plan.

Frequently Asked Questions

Can an undocumented relative inherit from a New York estate?
Yes. New York inheritance rights are not conditioned on immigration status. Distribution and any tax-withholding steps are handled through the Surrogate’s Court.

Why can’t my spouse’s green card use the marital deduction?
The unlimited marital deduction applies only to U.S. citizen surviving spouses. For a non-citizen spouse, a QDOT is the standard tool to defer estate tax.

Will making a will affect anyone’s immigration case?
No. A will is a New York state estate document. It has no bearing on a federal immigration application, and vice versa.

Do I need two different attorneys?
Often, yes. Estate planning is state law; immigration is federal law. Using the right specialist for each avoids costly mistakes.

Two Next Steps

For the New York estate and probate side — wills, trusts, a QDOT for a non-citizen spouse, or guiding foreign heirs through Surrogate’s Court — consult Morgan Legal Group. You can book a consultation directly.

For the federal immigration side, speak with the Miami-based immigration firm linked above. Keep the two tracks separate, and let each specialist do what they do best.