Estate planning can be particularly challenging for couples if one spouse is the citizen of another country. It is important for California residents, who are married to non-citizen spouses, to consider the special regulations surrounding estate tax marital deductions when creating an estate plan.
First, there is no standard estate tax marital deduction for a spouse who is not a U.S. citizen. While this may seem unfair, the rationale behind the estate tax marital deduction was to defer the tax until the death of the second spouse. If the non-citizen spouse moved out of the country after the death of the first spouse, he or she could not be subjected to the deferred taxation. However, if the non-citizen spouse becomes a citizen before the federal tax return is filed, the standard unlimited marital estate tax deduction will apply.
Second, while there is no gift tax marital deduction for lifetime transfers to a noncitizen spouse, there is an annual gift tax exclusion. The exclusion amount allowed for transfers during life to a non-citizen spouse was $133,000 in 2009.
For more information on how to create an effective estate plan, please contact our attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.