Silveri + Wilson

Estate Tax Planning for Non-US Citizens

In the sophisticated world of financial planning, estate planning stands out as an intricate choreography of decisions and instruments, carefully chosen to safeguard assets, optimize tax strategies, and facilitate the intended transfer of wealth. At the intersection of love, law, and legacy, married couples, especially those with differing nationalities, are presented with unique challenges in safeguarding their assets and ensuring their wealth seamlessly transitions to the next generation. The Qualified Domestic Trust (QDOT) is central to this narrative, a pivotal instrument in the estate planning toolkit. It serves as a beacon for couples where one partner is not a citizen of the United States, helping to ensure that their financial future remains uncompromised.

Background & History of the QDOT

Integrating Qualified Domestic Trusts into United States tax law was not just a minor tweak but a significant advancement for estate planning. Before their inception, couples where one spouse was not a citizen often found themselves caught in tax predicaments, with the non-citizen partner particularly vulnerable. Qualified Domestic Trusts were specifically crafted to offer these couples protection and notable tax benefits, streamlining their experience with the estate tax system.

United States Estate Tax Overview 

The United States estate tax applies to three broad categories of individuals: United States citizens, regardless of their place of residence. United States “residents” for estate tax purposes. Non-United States citizens and non-United States residents (NRAs) who possess United States situs property. United States citizens and domiciliaries (collectively “United States persons”) are taxed on their worldwide assets. They can claim a substantial exemption, which is $12,920,000 as of 2023, which has been adjusted annually for inflation. In stark contrast, NRAs are limited to taxation on just their United States situs properties and have a modest exemption of $60,000. 

The Marital Deduction  

At its core, the marital deduction is a provision within United States tax law designed to bolster the financial unity of married couples. It allows for the unlimited transfer of assets between spouses without incurring federal estate or gift taxes. This means that, upon the death of the first spouse, any assets passed to the surviving spouse (assuming they are a United States citizen) are generally exempt from estate tax, regardless of the amount. It’s a manifestation of the tax code’s acknowledgment of the joint economic partnership that marriage represents. However, while this deduction can provide substantial immediate tax savings, it’s crucial to note that the assets will be subject to estate tax upon the surviving spouse’s death, unless properly planned for.

The marital deduction is not available to a non-United States citizen spouse due to IRC § 2056(d) constraints without proper planning. Thankfully, the Qualified Domestic Trust provides a mechanism for tax deferral similar to the marital deduction.

The Qualified Domestic Trust Framework 

To grasp the essence of Qualified Domestic Trusts, one must acquaint themselves with its defining attributes:

  • Establishment & Management: The Qualified Domestic Trust must mandate at least one trustee to be either a United States citizen or a domestic corporation. Should a United States resident act as a trustee, they must reside, for tax purposes, within the United States.
  • Distributions: Beyond its inception, the trust must perpetually ensure that estate taxes, as articulated by I.R.C. § 2056A, are appropriately withheld from distributions of trust principal, with income distributions being the exception.
  • Location & Maintenance: The Qualified Domestic Trust, legally speaking, must reside within the United States. This necessitates the trust’s records to be stored and accessible within its borders.
  • Security Protocols: Elevated attention is warranted if the Qualified Domestic Trust’s worth surpasses $2 million, debt-excluded. In such instances, the trust must adhere to stringent security criteria, requiring a United States bank as a trustee or providing for bonds or letters of credit amounting to 65% of the Qualified Domestic Trust property’s market value.
  • Special Circumstances: Fascinatingly, even if the Qualified Domestic Trust’s valuation remains under $2 million, it isn’t entirely exempt from rigid stipulations. The exhaustive security protocols activate when more than 35% of the trust property’s annual market valuation is non-United States real estate.
  • Election & Documentation: The procedural requirement to elect a Qualified Domestic Trust is pivotal. This is elected on the deceased’s federal and Massachusetts estate tax returns. Once cemented, this election is irrevocably binding. Moreover, post-death asset migrations to a Qualified Domestic Trust mandate documentary evidence in line with Massachusetts legal standards.

Terminating a Qualified Domestic Trust

Suppose a non-citizen spouse inherits property without the involvement of a Qualified Domestic Trust. In that case, they can still achieve a full marital deduction (bypassing any Qualified Domestic Trust taxes or security measures) under two scenarios:

The surviving spouse becomes a United States citizen before the deceased’s estate tax return is submitted, and they meet the stipulations outlined in I.R.C. § 2056(d) and Treas. Reg. § 20.2056A-1(b).

If the surviving spouse obtains United States citizenship after the estate tax return is filed, they must adhere to the requirements of Treas. Reg. § 20.2056A-10(a).

Considering these provisions, it might be prudent to terminate the Qualified Domestic Trust and transfer its assets directly to the surviving spouse should they become a United States citizen post-establishing the Qualified Domestic Trust, as indicated in Treas. Reg. § 20.2056A-10. However, if the surviving spouse chooses to keep the assets in a trust, the decision to terminate the Qualified Domestic Trust can be left to their discretion.


Estate planning involves multifaceted tools and decisions tailored to secure assets and optimize intergenerational wealth transfer. Among these tools, the Qualified Domestic Trust emerges as a crucial instrument, primarily designed to navigate the intricate tax challenges married couples face with a non-citizen spouse. With the United States estate tax encompassing a broad spectrum of individuals and its complex provisions, Qualified Domestic Trusts are pivotal in extending tax reliefs and deferrals. Their meticulously detailed framework—from their establishment to stringent security measures—underscores their significance and the depth of protection they offer. Furthermore, the dynamic nature of Qualified Domestic Trusts, coupled with the potential for adjustments based on a spouse’s changing citizenship status, exemplifies their versatility. Tools like Qualified Domestic Trusts represent the responsiveness of tax law and reinforce the commitment to ensuring equitable financial futures for all, irrespective of nationality. Please contact us if our estate planning attorneys can assist you with your estate planning needs.

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