Couples who are both U.S. citizens receive the benefit of the unlimited marital deduction on federal estate and gift taxes. The idea is that the surviving spouse pays any estate tax at their death. In contrast, transfers from a U.S. citizen to a noncitizen spouse do not enjoy this benefit. The IRS figures they may return home to their own countries and avoid U.S. estates taxes at their death. Instead, lifetime transfers to non-citizen spouse are only tax-free up to the annual exclusion amount of $175,000.00. When one or both spouses are non-US citizens, it is crucial that an estate plan anticipate estate taxes. The key is figuring out estate tax consequences for international couples is where the decedent and surviving spouse reside at the time of death.

US Citizen Leaving Assets to Non-Citizen Spouse

Remember, with the current high federal estate tax exemption, in 2023 a U.S. citizen can gift up to $12.92 million dollars during their lifetime or at their death to anyone, including a non-citizen spouse. It does not matter where the non-citizen spouse lives. Annual gifts to non-citizen spouse are limited to $175,000.00. But given the high federal exemption, the federal estate and gift tax only becomes an issue for US citizens if they leave more than $12.92 million in assets.

US Resident Leaving Assets to Non-Citizen Spouse

A green card holder residing in the U.S. is treated like a U.S. Citizen for estate tax purposes. There is no unlimited marital deduction, but a U.S. resident can leave up to $12.92 million in assets to anyone regardless of where the beneficiary lives.

Non-Resident Leaving Assets to US Citizen Spouse

Any non-resident owning U.S. property can leave their U.S. spouse an unlimited amount of assets using the unlimited marital deduction. This is because the IRS will one day be paid because of the spouse’s citizenship.

Non-Resident Leaving Assets to US Resident

A non-resident alien leaving U.S. based assets to a non-citizen spouse—no matter where the surviving spouse lives—the federal estate tax exemption is only $60,000.00. The 40% estate tax on a non-resident who is not a U.S. citizen depends on what is considered a U.S. asset – real estate for example is always a U.S. asset.

What is a Qualified Domestic Trust

A QDOT allows the marital deduction for property passing to a non-citizen surviving spouse. It does not avoid estate tax, just defers it until the surviving spouse’s death. The overall purpose is to ensure that the IRS will eventually be able to tax property for which a marital deduction is claimed. The requirement that the surviving spouse place property in a QDOT ensures that if the marital deduction is allowed, the property will still ultimately be subject to death tax.

QDOT Requirements

A QDOT, like a qualified terminable interest property trust (“QTIP”), mandates that all income be paid to the surviving spouse and that no other person have an interest in the trust during their lifetime. However, QDOTs have additional requirements and limitations, such as:

At least one Trustee must be a domestic corporation or a U.S. citizen.
The trust must be subject to and administered under the laws of a particular state or the District of Columbia.
Property placed in the QDOT must pass from the decedent to the surviving spouse in a form that would have qualified for the marital deduction if the surviving spouse was a U.S. citizen.
The trustee must have the right to withhold the estate tax and pay it to the IRS.

The biggest drawback from a QDOT is that unlike an income distribution, which are tax free, any distributions of principal to the surviving spouse are taxable events. When a distribution from principal occurs, the U.S. trustee must file an annual statement with the IRS and pay federal estate tax on the distribution. This estate tax trigger can be waived under limited circumstances when a “hardship” can be proven.

What Happens if the Surviving Spouse Leaves the US?

When death or a distribution from principal occurs, the U.S. trustee must file an annual statement, and federal estate tax is imposed. The law imposes security requirements to ensure the payment of the estate tax. The IRS imposes different security requirements depending on if the assets in the trust exceed $2 million dollars, whether the trustee is a U.S. Bank, and what percentage of the trust property is located within the United States. These requirements ensure the IRS get its due on the surviving spouse’s death.

Do You Need a QDOT?

For high-net-worth international couples, noncitizens with U.S. property or those planning for when the estate tax exemption is lowered, a Qualified Domestic Trust (“QDOT”) is often the best alternative. A QDOT can even be set up after the U.S. Citizen spouse passes away. A trust created for the spouse which fails to meet all of the requirements can be amended to qualify as a QDOT. Additionally, under certain circumstances, an executor can, with the permission of the surviving spouse, make an irrevocable election to a QDOT.

A QDOT would not be needed if the surviving spouse becomes a U.S. citizen before the deceased spouse’s estate tax return is filed. This is usually nine months from date of death, but can be extended six months. Multinational spouses should seek out an experienced estate planning attorney and accountant, as the rules are complex and always changing.