If you are a first-generation homeowner in Miami, buying your first house was probably the proudest milestone of your family’s journey to the United States. But protecting what you have built takes more than a deed in a drawer. For immigrant and mixed-status families, an estate plan and an immigration matter are deeply intertwined, and a decision in one area can quietly undo the work you did in the other. Here is what newcomers to Florida need to understand before something goes wrong.
The non-citizen spouse problem most couples never hear about
Married couples often assume they can leave everything to each other tax-free. For U.S. citizens, that is largely true thanks to the unlimited marital deduction. But that deduction does not apply when the surviving spouse is not a U.S. citizen, even if that spouse is a lawful permanent resident living right here in Miami. Congress was concerned a non-citizen spouse could inherit a large estate and then leave the country, beyond the reach of U.S. estate tax.
The standard solution is a Qualified Domestic Trust, or QDOT. Property passes into the trust for the surviving non-citizen spouse, who receives income and support during life, while the deferred estate tax is collected as principal is distributed or at the second death. QDOTs have strict trustee and funding requirements, and Florida trusts are governed by Chapter 736 of the Florida Statutes. This is not a do-it-yourself document. If your spouse holds a green card rather than citizenship, your plan should address the QDOT question directly.
Estate tax exposure when you or your assets are “non-resident”
Immigration status also changes how the federal estate tax reaches you. A non-resident, non-citizen who owns U.S. property, including Florida real estate, is generally subject to U.S. estate tax on those U.S.-situated assets, and the exemption available to non-resident aliens is dramatically smaller than the one available to citizens and domiciliaries. Families who own property in both their home country and South Florida often have exposure on both sides of the border. Determining your “domicile” for tax purposes is a fact-specific analysis that should be done with counsel rather than assumed.
Florida homestead protects the house, but does not write your plan
Florida’s homestead protections are among the strongest in the country, shielding your primary residence from most creditors and restricting how it passes at death when you have a spouse or minor children. Those protections apply regardless of citizenship. But homestead law also limits your freedom to devise the home, and it interacts with your will in ways that surprise people. A valid Florida will must meet the formalities of Florida Statutes section 732.502, including proper witnessing. A foreign will or a will drafted in another state may not do what you expect once Florida homestead rules apply.
Guardianship for the children of immigrants
For many first-generation families, the most urgent issue is not taxes at all. It is who would raise the children if both parents were suddenly unavailable, whether through death, a medical emergency, or an immigration detention. Naming a guardian in your estate plan, and considering a stand-by guardian for short-term emergencies, gives your children continuity instead of leaving the decision to a court and to relatives who may live abroad.
Powers of attorney when life crosses borders
Immigration cases frequently require travel. You may need to return to your home country for consular processing, a visa interview, or a family matter while a case is pending. A durable power of attorney and a health care surrogate designation let a trusted person manage your home, finances, and medical decisions in Florida while you are abroad. Without them, your family may be locked out of accounts or unable to act on the house you worked so hard to buy.
Coordinate your estate plan with your immigration case
Because we focus on estate planning and probate, we do not handle immigration matters, and we routinely refer clients to a dedicated immigration attorney so both sides of the plan fit together. If you are pursuing family green cards for a spouse or parent, the timing of naturalization can change whether a QDOT is even necessary, so the two plans should be built in tandem. Clients sponsoring key workers or planning around their own status often coordinate with counsel on employment-based immigration before finalizing trusts and beneficiary designations.
The bottom line for Miami newcomers is simple: a green card, a pending naturalization case, or a non-citizen spouse all reshape what your estate plan needs to say. You deserve both an estate planning attorney and an immigration attorney who talk to each other. If you own a home in South Florida and your family includes non-citizens, let’s review your plan and make sure your hard-earned legacy is protected on both sides.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles how a will is contested in New York.