Estate Planning When Your Spouse Isn't a Citizen

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A note from Heather Hazelwood of Ampersand Law: Today, I'm thrilled to collaborate on this blog post with Meghan Deutsch Blanco, a local immigration attorney. She and I discussed special considerations in estate planning for married couples where one spouse isn’t a citizen. As you likely know, immigration law is an (increasingly) complex topic in our country. The following is not legal advice and is to be used for informational purposes only.

Estate planning can be intimidating for many reasons, but when your spouse/partner is not a U.S. Citizen, it can feel even more overwhelming. There are three main scenarios for these couples:

If your spouse has “lawful permanent resident” (LPR) status - the good news is that under the current laws, your spouse has the right to stay in the United States even after you (the US Citizen spouse) die, so long as they continue to meet the LPR status requirements. There is even even a special process for a “conditional resident” to file for removal of the conditions of residency based on the death of the citizen spouse. The not-so-good news is that the citizen spouse’s death can leave the LPR spouse facing some complex international taxation issues. If this is your situation, you would be well-served by consulting with an experienced estate planning and tax attorney to understand what to expect and create a plan that will minimize the potential for negative outcomes. Another option to consider is for the LPR spouse to apply for citizenship if they are eligible to do so.

If your spouse is a non-immigrant visa holder and/or has a type of “Deferred Action” status - there is much less stability under the law for the non-citizen spouse - both during the citizen spouse’s life and particularly after they die. If the non-citizen spouse intends to stay in the United States long-term, you may want to meet with an immigration attorney to explore options for filing a marriage-based residency application before you meet with an estate planning attorney. Note that the rules for these applications have changed in recent years and these tend to be complex cases so consulting with an attorney is very important, even if your end-goal is to complete the paperwork on your own.

If your spouse is undocumented - three things are advisable and should happen as quickly as possible, if you are able to manage them. First, meet with an immigration attorney to determine whether the non-citizen spouse can (and should) proceed with an application for permanent residency. Second, meet with an estate planning attorney to put together power of attorney documents and guardianship nominations for minor children, so that you are prepared in the event the non-citizen spouse has to leave the country (or ask your immigration attorney if they can help you with this). Third, create a family plan about that exact scenario (if the non-citizen spouse has to leave the country).

If you’d like to further discuss immigration law matters, you can reach Attorney Meghan Deutsch Blanco at (919) 322-9113.

Keep reading here to learn more about power of attorney and guardianship nominations, as well as other estate plan documents. And, check out the links for related estate planning below.