Trust Planning for Green Card Holders in New York

If you hold a green card and own property or assets in New York, you can absolutely build a trust-based estate plan here — but doing it well means avoiding a handful of expensive, very common mistakes. The biggest pitfall is assuming that the same rules apply to citizens and non-citizens. They do not. Immigration status changes how the marital deduction works, how the New York estate tax hits your family, and how foreign heirs eventually inherit. Below are the missteps we see most often, and how to plan around them under New York law.

Mistake #1: Assuming the Marital Deduction Protects a Non-Citizen Spouse

For married couples, the unlimited marital deduction normally lets one spouse leave assets to the other tax-free. The trap: that deduction does not apply when the surviving spouse is not a U.S. citizen — even if that spouse is a lawful permanent resident (green card holder). Assets passing directly to a non-citizen spouse can be exposed to estate tax that a citizen spouse would never face.

The standard fix is a QDOT (Qualified Domestic Trust). A QDOT holds assets for the benefit of the non-citizen surviving spouse and defers the estate tax until distributions of principal are made, preserving the marital-deduction benefit in a compliant way. Couples with one citizen and one green-card spouse should treat the QDOT as a core question, not an afterthought.

Mistake #2: Picking the Wrong Type of Trust

Not all trusts do the same job, and choosing the wrong one wastes money and protection. Under New York’s EPTL Article 7, the two workhorses serve very different goals:

A green-card family worried about estate tax or future long-term-care costs usually needs an irrevocable structure, but those plans must account for the five-year Medicaid look-back before benefits are available. If a loved one has disabilities, a special needs trust under EPTL 7-1.12 can preserve government benefits — see our overview of the special needs trust. Still deciding on the basics? Our guide on trust vs. will explains where each fits.

Mistake #3: Forgetting the New York Estate-Tax “Cliff”

New York has its own estate tax, separate from the federal one. For 2026, the basic exclusion is $7,350,000. The dangerous detail is the cliff: if your taxable estate exceeds 105% of the exclusion — $7,717,500 — you lose the entire exemption, not just the excess. An estate a few dollars over the cliff can owe tax on the whole amount. Trust planning, lifetime gifting, and careful asset titling can keep a family below that line. Skipping this analysis is one of the costliest oversights for higher-net-worth immigrant households.

Mistake #4: Confusing State Estate Law With Federal Immigration Law

This is where mixed-status families get tangled up. Estate planning (wills under EPTL §3-2.1, trusts, powers of attorney under GOL §5-1513, health care proxies under Public Health Law Article 29-C, and probate in the New York Surrogate’s Court) is governed by New York State law. Immigration — green cards, naturalization, family petitions — is governed by federal law through USCIS.

These are separate practice areas, and using the right specialist for each is the honest path. Our firm handles the New York estate and trust side. For the federal immigration side — petitions, adjustment of status, family-based green cards — families should consult a family-based immigration attorney. Because immigration is federal, that attorney can represent New York families from anywhere in the country; Fitenko Law also serves Russian- and Ukrainian-speaking families, which helps when documents and explanations need to be crystal clear.

One reassurance: foreign heirs and non-citizen beneficiaries can inherit New York property. Non-resident or non-citizen status does not bar inheritance. It does add documentation and potential tax-withholding steps, so build those into the plan early rather than discovering them during trust administration.

Frequently Asked Questions

Do I have to be a U.S. citizen to create a trust in New York?
No. Green card holders and other non-citizens can create and fund New York trusts under EPTL Article 7. Your immigration status affects certain tax results — not your right to plan.

What happens if my spouse is not a citizen?
The unlimited marital deduction will not protect assets passing to a non-citizen spouse. A QDOT is the standard solution to preserve that benefit and defer the estate tax.

Can my relatives abroad inherit my New York assets?
Yes. Foreign and non-citizen heirs can inherit New York property. Expect extra documentation and possible tax-withholding steps as part of probate or trust administration.

Should one attorney handle both my estate plan and my immigration case?
Usually not. They are different bodies of law. A New York estate attorney handles the trust and probate side; a family-based immigration attorney handles the federal petitions.

Next Steps

For the New York estate and trust side — choosing between a QDOT, an irrevocable trust, or a revocable plan, and staying under the estate-tax cliff — speak with the team at Morgan Legal Group. You can schedule a consultation or start by reading our trust vs. will guide.

For the federal immigration side — green cards, family petitions, and adjustment of status — consult a family-based immigration attorney as referenced above. Getting the right specialist on each half of the plan is the surest way to avoid the mistakes that cost immigrant families the most.