Immigration Status and Inheritance Rights in New York

Your immigration status does not prevent you from inheriting property in New York. Foreign heirs, green-card holders, and non-citizens can all inherit New York assets, and probate proceeds through the New York Surrogate’s Court the same way it does for citizens. What changes is the paperwork, the tax treatment, and which professional you need. New York estate and probate law is state law; immigration is federal law. Treating them as one problem is the most common and most expensive mistake mixed-status families make. This post follows one family through a typical situation to show where the two systems meet and where they stay separate.

Meet the Petrov Family

Imagine Anna and Mykola Petrov, who moved to Brooklyn from Ukraine. Anna is now a U.S. citizen; Mykola is a lawful permanent resident (green-card holder); their adult daughter lives abroad and is neither a citizen nor a resident. They own a co-op, a small business, and savings. When one of them passes away, three different statuses are in play at once — and each one touches the estate plan differently.

This is exactly the scenario where families assume “we’re all family, it will sort itself out.” Under New York law, it does not sort itself out automatically. Here is what each status means.

The Estate-Planning Side (New York Law)

If a New Yorker dies with a valid will, it must meet EPTL §3-2.1: two attesting witnesses, the testator’s signature at the end, and publication. Without a will, the estate passes by intestacy under EPTL Article 4, and the Surrogate’s Court decides who inherits according to a fixed statutory formula — regardless of what anyone thought the plan was. A will lets the Petrovs control that outcome; intestacy hands it to a default rule.

The single most important wrinkle for this family is the non-citizen spouse. The unlimited marital deduction — which normally lets a spouse inherit any amount tax-free — does not apply when the surviving spouse is not a U.S. citizen. So if Anna (a citizen) dies and leaves everything to Mykola (a green-card holder), the usual spousal shield is gone. The standard fix is a QDOT (Qualified Domestic Trust), which preserves the deferral while the assets are held for the non-citizen spouse. This is a status-driven planning step, not an immigration step.

A few more New York tools the Petrovs should know about:

Tool	NY Authority	What it does
Revocable living trust	EPTL Article 7	Avoids probate (no estate-tax savings)
Irrevocable trust	EPTL Article 7	Tax reduction, asset protection, Medicaid (5-year look-back)
Special needs trust	EPTL 7-1.12	Protects a disabled beneficiary’s benefits
Durable power of attorney	GOL §5-1513	2021 statutory short form for financial decisions
Health care proxy	Public Health Law Art. 29-C	Names someone to make medical decisions

New York also has its own estate tax. For 2026 the basic exclusion is $7,350,000, but watch the cliff: an estate over $7,717,500 (105% of the exclusion) loses the entire exemption, not just the excess. For most immigrant families this is not the immediate concern, but it matters for business owners and real-estate holders.

Their daughter abroad can still inherit. Non-resident, non-citizen status does not bar inheritance of New York property — it simply adds documentation and tax-withholding steps when assets cross to a foreign beneficiary. If anyone challenges the will, that dispute is resolved in contested probate before the Surrogate.

Where Immigration Actually Enters the Picture

Immigration status affects tax categories (citizen vs. non-citizen spouse) and logistics (a foreign heir’s documentation), but the inheritance plan itself is built under New York law. Immigration law is separate and entirely federal, administered by USCIS. Because it is federal, an immigration attorney can represent a family in any U.S. state, including New York clients.

The honest takeaway: this firm handles your New York estate and probate matters; for the federal immigration side — sponsoring a spouse, adjusting status, or pursuing a green card — families should consult an attorney who handles family-based green cards. Fitenko Law focuses on family-based immigration and serves Russian- and Ukrainian-speaking families, which makes them a natural fit for households like the Petrovs. Use the right specialist for each system; do not expect one attorney to do both well.

What the Petrovs Should Do, in Order

1. Sign a valid New York will (EPTL §3-2.1) so intestacy never decides for them.
2. If a spouse is a non-citizen, plan a QDOT to protect the marital deferral.
3. Sign a power of attorney and a health care proxy for incapacity.
4. Keep documentation ready for any foreign heir.
5. Handle the green-card and sponsorship work through an immigration attorney — separately.

When the time comes to administer the estate, the person named in the will steps into a defined role; see executor duties for what that involves, and our Surrogate’s Court guide for the filing process.

Frequently Asked Questions

Can a non-citizen inherit property in New York?
Yes. Non-resident and non-citizen status does not bar inheritance. Foreign heirs can inherit New York property, with added documentation and possible tax-withholding steps.

Why does a non-citizen spouse need special planning?
The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT (Qualified Domestic Trust) is the standard way to preserve the tax deferral.

Does my immigration case affect my New York probate case?
They are separate. Probate is New York state law in the Surrogate’s Court; immigration is federal law through USCIS. You generally need a specialist for each.

Can an immigration attorney help if I live in New York?
Yes. Because immigration is federal, an immigration attorney can represent New York clients regardless of where the firm is located.

Next Steps

For the New York estate and probate side — wills, trusts, QDOT planning, and Surrogate’s Court administration — schedule a consultation with Morgan Legal Group at calendly.com/russel-morgan/30min or start with our Surrogate’s Court guide.

For the federal immigration side — family-based green cards and spousal sponsorship — consult the immigration attorney referenced above, who serves Russian- and Ukrainian-speaking families. Two systems, two specialists, one coordinated plan for your family.