Yes — you can and should make an estate plan in New York even while your green card or citizenship is still pending. Your immigration status does not stop you from signing a valid New York will, naming a guardian for your children, or setting up a trust to protect your family. In fact, the in-between period is exactly when a clear plan matters most, because it answers the question every immigrant parent and spouse quietly worries about: what happens to my family if something happens to me before my paperwork is finished? This guide walks you through the New York estate-planning tools available to you right now, and explains where your immigration case fits — and where it does not.
Your New York Estate Plan Does Not Wait for USCIS
New York estate law is state law. It looks at where you live and what you own — not at the stamp in your passport. If you live in New York, you can sign a valid will under EPTL §3-2.1: you sign at the end of the document, you tell your two attesting witnesses that it is your will (this is called publication), and they sign too. Without a will, New York’s intestacy rules in EPTL Article 4 decide who inherits, which may not match what you would have chosen for your spouse and children.
The reassuring part for mixed-status families: foreign and non-citizen heirs can inherit New York property. Being a non-resident or non-citizen does not bar your spouse or children from receiving what you leave them. It simply adds documentation and tax-withholding steps when the estate is settled in the New York Surrogate’s Court, where probate is filed.
Three documents form the backbone of a plan you can put in place today:
- A will — names who inherits and who serves as guardian of your minor children.
- A durable power of attorney — under GOL §5-1513, lets someone you trust manage finances if you cannot.
- A health care proxy — under Public Health Law Article 29-C, names who makes medical decisions for you.
Why Your Status Matters for Taxes and Trusts
Here is the one place where citizenship genuinely changes the math. The federal unlimited marital deduction — which normally lets you leave everything to a spouse tax-free — does not apply when your surviving spouse is not a U.S. citizen. The standard fix is a QDOT (Qualified Domestic Trust), which holds assets for a non-citizen spouse while preserving the deferral. If you or your spouse is still waiting on citizenship, this is a conversation worth having early.
Trusts give New York families more options under EPTL Article 7:
| Trust type | What it does |
|---|---|
| Revocable living trust | Avoids probate; no estate-tax savings |
| Irrevocable trust | Tax reduction, asset protection, Medicaid planning (5-year look-back) |
| Special needs trust (EPTL 7-1.12) | Provides for a disabled loved one without losing benefits |
| QDOT | Preserves marital deferral for a non-citizen spouse |
Keep New York’s estate tax in mind: for 2026 the basic exclusion is $7,350,000, but there is a “cliff” at 105% — $7,717,500. An estate that goes over the cliff loses the entire exemption, not just the excess. Our New York estate tax guide explains how to plan around it.
The Federal-vs-State Split: Use the Right Specialist
This is the honest takeaway. Estate planning is state law; immigration is federal law. They are two different practice areas, and the best outcomes come from using the right specialist for each. Your New York will, trust, and tax planning belong with a New York estate attorney. Your green card or citizenship case belongs with an immigration attorney.
Because immigration is federal, an immigration attorney can represent your family no matter which state you live in — including New York. Morgan Legal Group handles your New York estate and estate matters; for the immigration side, we honestly refer families to a trusted immigration law firm in South Florida, Fitenko Law, who serve Russian- and Ukrainian-speaking families. We will not predict approvals, quote government fees, or guess at processing times — and neither should anyone else. We simply make sure each part of your life is in the right professional’s hands.
Frequently Asked Questions
Can I sign a New York will if my green card is still pending?
Yes. New York will validity under EPTL §3-2.1 depends on residency and proper signing and witnessing — not on your immigration status.
Will my spouse abroad or my non-citizen spouse be able to inherit?
Yes. Non-citizen and non-resident spouses and children can inherit New York property. Extra documentation and tax-withholding steps may apply, and a QDOT may be needed to preserve the marital tax deferral.
Does estate planning affect my immigration case?
No. They are separate legal areas. A New York estate plan does not interfere with a pending green card or citizenship application.
Who should handle my immigration paperwork?
A licensed immigration attorney. Estate attorneys do not handle USCIS filings, and immigration attorneys do not draft New York wills — use a specialist for each.
Take the Next Step for Your Family
For the New York estate and estate-planning side — your will, trusts, powers of attorney, and tax planning — consult Morgan Legal Group. You can schedule a consultation here and put your family’s protection in place now, no matter where your immigration case stands.
For the immigration side — your green card or citizenship process — speak with a licensed immigration attorney as referenced above. The right plan is not one decision; it is two specialists working for the same family.
Further reading from Morgan Legal Group: why estate planning is so important.