ESTATE PLANNING WITH A NON-CITIZEN SPOUSE

By Brent F. Dille, Esq.

If your spouse isn’t a United States citizen, some special legal rules may affect your estate planning. But for the most part, you can proceed just as if your spouse were a citizen. 

Basic Estate Planning

When it comes to the basic estate planning steps that just about everyone should take, it doesn’t matter whether or not you or your spouse are citizens. Both of you should:

• Make wills or living trusts to leave assets that you have in the United States.
• Name beneficiaries for your retirement accounts.
• Make durable powers of attorney for finances and for health care.

Can Noncitizens Inherit Property?

One threshold question you may have is simply whether you can leave property to someone who isn’t a U.S. citizen. The answer is yes; noncitizens can inherit property just as citizens can. So when you make your will or living trust, or name beneficiaries for your retirement accounts or life insurance policies, there is no problem with naming your noncitizen spouse.

Federal Estate & Gift Tax: The Rules for Spouses

Most people don’t need to worry about the federal gift and estate tax, which affects only very wealthy families. For deaths in 2016, only those who leave more than $5.45 million are potentially subject to the tax. Married couples can leave a total of twice that amount tax-free.

How it works. The tax is imposed on transfers of property both during life and at death. The tax rate is the same in both circumstances. Because the exemption amount is so high, very few families pay the tax. It isn’t collected until after the surviving spouse’s death, when the value of all property the surviving spouse gave away or left is totaled up.

Assets Left at Death

Assets left to a surviving spouse are not subject to federal estate tax, no matter how much they are worth—IF the surviving spouse is a U.S. citizen. This rule is called the unlimited marital deduction. It is in addition to the individual exemption that everyone gets.

The marital deduction, however, does not apply when the spouse who inherits isn’t a U.S. citizen, even if the spouse is a permanent U.S. resident. The federal government doesn’t want someone who isn’t a citizen to inherit a large amount of money, pay no estate tax, and then leave the country to return to his or her native land.

Still, keep in mind you can leave assets worth up to the exempt amount (again, $5.45 million in 2016) to anyone, including your noncitizen spouse, without owing any federal estate tax. And if the noncitizen spouse dies first, assets left to the spouse who is a U.S. citizen do qualify for the unlimited marital deduction.

Gifts Given During Life

If your spouse is a citizen, any gifts you give to him or her during your life are free of federal gift tax. If your spouse is not a U.S. citizen, however, the special tax-free treatment for spouses is limited to $148,000 a year (in 2016). This amount is indexed for inflation. That’s in addition to the amount you can give away or leave to any recipient without owing federal gift/estate tax.

Postponing or Avoiding Federal Estate Tax

If you have so much money that you are worried about estate tax, there are two main strategies to consider.

Get Citizenship

If your spouse becomes a U.S. citizen by the time your estate’s federal estate tax return is due, he or she will qualify for the unlimited marital deduction. The return is generally due nine months after death, but the IRS may grant a six-month extension. Because it takes a long time to get citizenship—for most people, there is a waiting period before you can apply, and it takes at least several months after you apply—this isn’t an option for most people.

Use a QDOT Trust

Your noncitizen spouse can inherit from you free of estate tax if you use a special trust, called a "qualified domestic trust" or QDOT. (Internal Revenue Code section 2056A.) You leave property to the trust, instead of directly to your spouse. Your spouse is the beneficiary of the trust; there can’t be any other beneficiaries while your spouse is alive. Your spouse receives income that the trust property generates; these amounts are not subject to estate tax.

If trust assets themselves (principal) are distributed to your spouse, however, the estate tax will probably have to be paid on that property. (There’s an exception when distributions are made because the spouse has an urgent, immediate need and no other resources.)

A QDOT must be established, and the property must be transferred to it, by the time the estate tax return of the deceased spouse is due. Usually, it’s set up while both spouses are alive, and comes into existence when the citizen spouse dies. The trustee—that is, the person or entity in charge of trust assets—must be a U.S. citizen or a U.S. corporation such as a bank or trust company.

As always, if you have any questions, please do not hesitate to contact one of our experienced estate planning attorneys.

Helping Clients Choose Fiduciaries

Clients often give detailed thought to their plans and know down to the last Hummel to whom things should go. But, then they choose their fiduciary (trustee or executor) seemingly with little thought to the role in which they would serve. Clients gloss over the importance of the fiduciary. But, estate planning attorneys know that a fiduciary is really the keystone to an estate plan. The person selected as executor or trustee is critical to the success of the plan. Here are some potential mistakes that a fiduciary could make:

• Paying off creditors’ claims as soon as they come in, leaving insufficient assets to pay claims of a higher priority.

• Failing to collect and protect assets

• Failing to invest assets appropriately

• Failing to exercise discretionary appropriately

• Failing to make appropriate filings, such as tax returns

Many of the above mistakes may be avoided if the fiduciary simply hires an experienced estate planning attorney to guide them. Without proper guidance, many fiduciaries might make some of these mistakes.

But, other mistakes may happen due to the inability of the fiduciary to exercise and carry out sound judgment. For example, can the trustee stand up to a beneficiary who wants distributions that may not be in the beneficiary’s best interests, like a teenage beneficiary who wants an expensive sports car?

Family relationships also should be considered. Will naming one sibling as the trustee of another sibling’s trust drive a wedge between them at the time it’s most important for them to be there for each other, i.e., at their parents’ deaths?

The estate planning attorney can discuss what makes a good fiduciary:

• Integrity

• Willing to bring in outside experts (like an estate planning attorney, accountant, etc.)

• Good organizational skills

• Good relationships with others, such as beneficiaries

• Reasonable intelligence

With guidance from the estate planning attorney, the client can choose the most appropriate fiduciary, who may or may not be the oldest child. In fact, in some circumstances, when there is not a good choice from among the family, it may be a corporate fiduciary or other choice from outside the family.