Estate Planning With a Pending Green Card in New York

Yes, you can and should make an estate plan in New York while your green card or citizenship is still pending. Your immigration status does not stop you from signing a valid will, creating a trust, or naming someone to make decisions if you cannot. New York estate law looks at where you live and what you own here, not at the color of your passport. So if you are a parent or spouse worried about protecting your family while you wait, this guide is for you, and the good news is that the tools you need are available to you right now.

The one thing to understand from the start is that two separate areas of law are at play. Your estate plan is governed by New York state law. Your green card or citizenship case is governed by federal immigration law. They are different practice areas, handled by different specialists, and the smartest families simply use the right professional for each side.

Your Estate Plan Does Not Wait for Your Status

A non-citizen living in New York can sign a fully valid will. Under EPTL §3-2.1, a New York will requires two attesting witnesses, your signature at the end of the document, and publication (telling the witnesses it is your will). None of those steps ask about citizenship. If you pass away without a will, New York’s intestacy rules under EPTL Article 4 decide who inherits, and that result may not match what you would have chosen for your spouse and children. Writing a will keeps that decision in your hands.

You can also use trusts under EPTL Article 7. A revocable living trust lets your family avoid the probate process (though it gives no estate-tax savings). An irrevocable trust can offer tax reduction, asset protection, or help with Medicaid planning, keeping in mind the 5-year look-back period. Families raising a child with disabilities can use a special needs trust under EPTL 7-1.12 to provide for that child without risking benefits. You can read more on our estate planning overview and learn the formalities on our wills page.

Why a Non-Citizen Spouse Needs Special Attention

Here is the single most important rule for mixed-status couples. When one spouse is not a U.S. citizen, the unlimited marital deduction does not apply to property left to that surviving spouse. Normally a citizen can leave an unlimited amount to a spouse tax-free; for a non-citizen spouse, that automatic shelter is gone.

The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT for your surviving non-citizen spouse, preserving the tax deferral that the marital deduction would otherwise have provided. This is exactly the kind of planning that is easy to miss if you assume “spouse leaves everything to spouse” works the same for everyone. It does not.

Situation	Marital deduction	Common fix
Surviving spouse is a U.S. citizen	Unlimited, tax-deferred	Standard will or trust
Surviving spouse is not a citizen	Does not apply	QDOT
Child with special needs	N/A	Special needs trust (EPTL 7-1.12)

Keep New York’s estate tax in mind, too. For 2026 the basic exclusion is $7,350,000, but New York has a “cliff” at 105%, or $7,717,500. An estate that goes over the cliff loses the entire exemption, not just the excess. Our New York estate tax guide walks through how that affects larger estates.

Naming Who Decides If You Cannot

Estate planning is not only about death; it is about protecting your family while you are alive and waiting. Two documents matter most:

• Durable power of attorney (GOL §5-1513, the 2021 statutory short form) lets a trusted person manage your finances if you are unavailable or incapacitated.
• Health care proxy (Public Health Law Article 29-C) lets someone you choose make medical decisions for you.

These are especially reassuring for immigrant families, because they keep authority inside your household instead of leaving a court to decide.

Where Immigration Fits In

Your relatives abroad are not shut out. Foreign and non-citizen heirs can inherit New York property; non-resident or non-citizen status does not bar inheritance. Probate is filed in the New York Surrogate’s Court, and inheritance by foreign beneficiaries simply adds documentation and tax-withholding steps, not a wall.

For the immigration case itself, you need an immigration attorney, not an estate lawyer. Because immigration is federal, an immigration attorney can represent New York families from anywhere in the country. Our firm handles the New York estate and estate-planning side; for the federal immigration side, we honestly point families to a Miami immigration attorney at Fitenko Law, which serves Russian- and Ukrainian-speaking families. Using the right specialist for each side is how you protect your family completely.

Frequently Asked Questions

Can I sign a New York will before my green card is approved?
Yes. New York will validity depends on the EPTL §3-2.1 formalities, not on your immigration status.

My spouse is not a citizen. Will my estate plan still protect them?
It can, but the unlimited marital deduction will not apply. A QDOT is the standard tool to preserve the tax benefit.

Can my parents or children overseas inherit my New York home?
Yes. Foreign and non-citizen heirs can inherit; there are extra documentation and tax-withholding steps in Surrogate’s Court.

Should one lawyer handle both my estate plan and my immigration case?
Usually no. They are separate areas of law, so it is best to use an estate attorney for the New York plan and an immigration attorney for the federal case.

Take the Next Step for Your Family

For the New York estate and estate-planning side, Morgan Legal Group can build a plan that fits a mixed-status family, including QDOT planning, trusts, and powers of attorney. Start with our estate planning overview or schedule a conversation at calendly.com/russel-morgan/30min.

For the federal immigration side of your situation, consult the Miami immigration attorney referenced above. Two specialists, one protected family.