For many first-generation homeowners in Key West, buying property here is the culmination of years of work — often while a green-card application, work visa, or naturalization case is still moving through the system. That timing matters. The estate plan that protects an immigrant family is shaped not only by Florida law, but by each family member’s immigration status. The two areas overlap far more than most newcomers realize, and getting one right while ignoring the other can quietly undo years of planning.
This article explains where estate planning and immigration law intersect for non-citizen and mixed-status families in the Florida Keys. Our firm handles the estate-planning side; for the immigration side we routinely point clients to qualified immigration counsel, and note specific services below.
The Non-Citizen Spouse Problem: Why the Marital Deduction May Not Apply
Under federal law, a U.S. citizen can leave an unlimited amount to a surviving spouse free of federal estate tax through the unlimited marital deduction. That deduction generally does not apply when the surviving spouse is not a U.S. citizen — even if that spouse is a lawful permanent resident. The concern is that a non-citizen spouse could inherit and then leave the country, putting the assets beyond the reach of the U.S. estate tax system.
The standard solution is a Qualified Domestic Trust, or QDOT. Property passing into a properly drafted QDOT can qualify for the marital deduction, deferring estate tax while the surviving non-citizen spouse is provided for. QDOTs carry strict requirements — including rules about U.S. trustees and the handling of distributions — so they must be drafted deliberately, not bolted on later. For a couple where one spouse is mid-process on naturalization, the plan should also anticipate what happens if citizenship is granted before either spouse passes, since that can change whether a QDOT is even needed.
Estate Tax Exposure for Non-Resident Non-Citizens
Immigration status also affects how much of an estate is exposed to federal estate tax in the first place. A person who is neither a U.S. citizen nor domiciled in the United States — a non-resident alien for estate-tax purposes — is generally taxed only on U.S.-situated assets, such as Florida real estate, but receives a far smaller exemption than a citizen or domiciled resident. A family member abroad who co-owns the Key West home, or who is named to inherit it, can face exposure that a U.S.-domiciled owner would not. Because “domicile” for tax purposes is a facts-and-circumstances question separate from a visa category, this is an area where estate and immigration analysis genuinely have to be coordinated.
How Immigration Status Affects Beneficiaries and Inheritance
A common misconception is that a beneficiary must be a U.S. citizen to inherit. Under Florida law, a non-citizen — including an undocumented family member — can inherit property and serve as a beneficiary. A valid Florida will under section 732.502 requires the testator’s signature and two witnesses; it does not require beneficiaries to hold any particular status. Florida’s revocable and irrevocable trusts under Chapter 736 likewise allow non-citizen beneficiaries.
What status can affect is practical administration: a beneficiary living abroad, distributions that may have tax-reporting consequences, and whether receiving certain assets interacts with a pending immigration benefit. Those are reasons to plan with a trust rather than rely on a will and probate alone.
Florida Homestead and the Family Home
Your Key West residence likely qualifies as Florida homestead, which carries powerful creditor protection and constitutional restrictions on how the property can be left at death — particularly when there is a surviving spouse or minor children. Homestead rules apply based on residency and the property’s use, not citizenship, so first-generation owners benefit from the same protections. But homestead’s restrictions on devise can collide with a QDOT or trust strategy, which is exactly why these pieces should be designed together.
Guardianship, Powers of Attorney, and Travel
Two documents deserve special attention for immigrant families. First, name a guardian for minor children. If both parents travel abroad for a consular interview or visa appointment — or if a status issue ever separates a parent from a child — a clear guardianship designation tells a Florida court who should care for your children. Second, execute a durable power of attorney and a health-care surrogate before any international travel for immigration matters, so someone you trust can manage your home, finances, and medical decisions while you are out of the country.
Coordinate the Two — Don’t Choose Between Them
An estate plan built around a pending green card or naturalization case should be revisited as that case advances, because citizenship can change the marital deduction analysis and remove the need for a QDOT. We coordinate the estate side; for the immigration side we recommend experienced immigration counsel such as Fitenko Law, whether your matter involves family green cards or employment-based immigration. First-generation homeowners in Key West genuinely need both: an estate plan that reflects Florida law and a status strategy handled by an immigration attorney, each informed by the other.
This article is general information, not legal or tax advice. To build a plan around your family’s specific status and assets, speak with a Florida estate-planning attorney and qualified immigration counsel.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles New York probate and estate administration.
