Estate Planning for Non-U.S. Citizens Living in Florida
Florida is home to a large and growing population of residents who are not U.S. citizens, including green card holders, visa holders, and other lawful permanent residents. Many assume that citizenship status changes what they can and cannot do when it comes to wills, trusts, and property ownership in Florida. In most cases, that assumption is wrong under state law, though federal tax law tells a different story.
Overview
Florida estate planning law generally focuses on residency and legal capacity, not citizenship. A non-citizen who lives in Florida can sign a valid will, create a revocable living trust, name a health care surrogate, and execute a durable power of attorney, using the same legal formalities that apply to any Florida resident. Florida also places no special citizenship requirement on owning real estate, including a homestead. The larger complications for non-citizens tend to arise at the federal level, particularly around estate and gift tax rules for married couples, and in narrower state-law situations involving who can serve as a personal representative from outside Florida. Understanding where citizenship actually matters, and where it does not, helps avoid unnecessary worry and unnecessary gaps in planning.
Florida Law Looks at Residency, Not Citizenship
Under Florida Statute 732.502, the requirements for executing a valid will apply the same way to every testator, regardless of citizenship. The document must be in writing, signed by the testator, and signed by two witnesses in the testator's presence. Nothing in this statute asks about immigration status. The same is true for creating a revocable living trust, which is a legal arrangement that holds and manages assets during your lifetime and distributes them after death, often without the need for probate. A non-citizen can also serve as trustee of their own trust and can name any adult they choose as a successor trustee. Florida homestead protections, which shield a primary residence from many creditor claims and provide certain inheritance protections, generally apply based on where the property is your permanent home, not based on citizenship.
Federal Estate and Gift Tax Rules Are Different for Non-Citizens
Federal tax law is where citizenship status has a real and direct impact. Under federal law, married couples where both spouses are U.S. citizens can generally transfer unlimited assets to each other at death without triggering federal estate tax, through what is known as the unlimited marital deduction. This deduction does not apply automatically when the surviving spouse is not a U.S. citizen. Assets left directly to a non-citizen spouse can be subject to federal estate tax once they exceed the applicable exemption amount. A Qualified Domestic Trust, often called a QDOT, is a specialized trust structure under federal tax law that can defer this tax rather than losing the marital deduction outright. Setting up a QDOT correctly involves specific trustee and reporting requirements, and it is a decision that typically requires coordinated legal and tax guidance for couples where one spouse is not a citizen.
Choosing a Personal Representative When You Are Not a U.S. Citizen
A personal representative is the person appointed by the court to manage a Florida estate through probate, similar to what other states call an executor. Florida Statute 733.304 states that a person who is not domiciled in Florida generally cannot serve as personal representative unless they fall into specific categories, such as a spouse, a close blood relative, or an adoptive parent or child of the decedent. This rule is based on domicile, meaning where a person actually lives and intends to remain, not on citizenship. A non-citizen who is domiciled in Florida can serve as personal representative under the same rules that apply to any Florida resident. The practical issue for many families arises when a chosen personal representative lives outside Florida entirely, whether or not that person is a U.S. citizen.
Ready to Get Started?
Citizenship status affects federal estate and gift tax planning far more than it affects your ability to use Florida's core estate planning tools. For related reading, see Karia Law's overview of revocable living trusts in Florida.
Frequently Asked Questions
Yes. Florida does not impose a citizenship requirement on owning real estate or on including that property in a valid Florida will. Homestead protections generally apply based on whether the property is your permanent residence.
Not automatically. The unlimited marital deduction under federal law generally requires the surviving spouse to be a U.S. citizen. A Qualified Domestic Trust can help defer federal estate tax on assets passing to a non-citizen spouse, but it requires proper setup in advance.
It depends on domicile and relationship, not citizenship. Florida Statute 733.304 allows certain out-of-state relatives, such as a spouse or lineal relative, to serve even if they live outside Florida, but non-relatives who live outside Florida generally cannot.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Laws vary and individual circumstances differ. Consult a licensed Florida estate planning attorney for advice specific to your situation. Tejus Karia, Esq. is a member of The Florida Bar.
- Can a non-U.S. citizen own a home in Florida and pass it on through a will?
- Does my non-citizen spouse automatically inherit everything tax-free if I die first?
- Can I name a family member who lives outside Florida and is not a citizen as my personal representative?