We’ve blogged about multilingual legal translation services in the context of minimizing gift taxes on overseas transfers and certified online legal translations for international estate and trust attorneys. If a client is married to a non-citizen or non-resident, estate planning becomes more involved, thanks to the estate tax and gift tax laws applicable to non-citizens. Here are some things to keep in mind:

Define Residency

The first step is to determine whether the spouse is a resident. According to the IRS, there are two definitions of residency – one for income tax purposes and another for estate and gift tax purposes. For estate and gift tax purposes, a resident is defined as having ‘an intent to remain in a place indefinitely and no intention to move away from it’. This is important because the main question for exemption levels comes down to where the non-citizen considers home. If a non-citizen does not consider the US ‘home’, they are only entitled to a $60,000 estate tax exemption.

The QDOT

If the spouse is considered a non-resident, he or she is not entitled to claim the standard marital deduction. Instead, one must create a qualified domestic trust (QDOT) that specifically leaves property to the surviving spouse. To do this, the resident/citizen spouse will have to create a trust or will that includes a provision for the creation of the QDOT. In cases where the will is drafted in a foreign jurisdiction and it must be amended to include such a clause, that clause must be added in both the original language and include a foreign language translation.

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