People often treat citizen, resident, and domiciliary as one idea. For a New York estate, they are separate tests. More than one can describe you at the same time, and they do not always point to the same place.
You may hold a green card, file as a U.S. income-tax resident, and still have a real question about domicile. That question can change which court handles the estate and which tax rules may apply. This is general information, not legal advice.
Key takeaways
- Citizenship and a green card are not domicile, and neither one answers every tax question.
- Income-tax residence often follows a green card or substantial presence. Estate-tax domicile is a different test.
- New York domicile generally decides whether Surrogate's Court treats the estate as local and how New York estate tax classifies you.
- The federal marital deduction often depends on your spouse's citizenship (IRC 2056(d)). A treaty may change a result. Your tax adviser reads it.
Citizenship and immigration status
Citizenship is your legal tie to a country. It does not, by itself, fix your domicile, and it does not decide every tax. You can be a U.S. citizen living abroad. You can also be a citizen of another country who has made a home in New York.
A green card is an immigration status. It shows you are a lawful permanent resident of the United States. That is real evidence of ties here. It is still not the same thing as domicile, and tax law uses the word resident in more than one way. The which-questions guide can help you see which issues may touch your family.
Income-tax residence is its own test
For federal income tax, you are often a resident alien if you hold a green card, or if you meet the substantial-presence day count. The count generally uses days in the United States in the current year and the two years before it. Some people qualify for an exception. Some treaties use a tie-breaker when two countries both treat you as resident. Those points depend on the facts.
Income-tax residence can pull worldwide income onto a U.S. return. That question belongs with your tax adviser or accountant. It does not automatically mean you are domiciled in New York, and it does not automatically mean the estate is taxed as a U.S. estate. Our non-resident page and the non-citizen estate planning guide go further. This page stays with the labels.
Estate-tax domicile
For federal estate tax, resident generally means domiciled in the United States. You acquire a domicile by living in a place with no definite present intention of moving away. A brief stay, with a clear plan to leave, often does not create a new domicile. A domicile you already have generally continues until you acquire a new one. Gift tax often uses a similar idea of domicile. Your tax adviser applies both.
A U.S. citizen is generally subject to federal estate tax on property wherever it sits. A person who is not a U.S. citizen is often taxed on worldwide property if domiciled here, and often only on U.S.-situs property if not domiciled here. What counts as U.S. situs depends on the asset. The New York court path, when someone domiciled abroad left property here, is covered in foreign estate with New York assets.
Your spouse's citizenship is a separate question. If your spouse is not a U.S. citizen, the federal marital deduction is generally unavailable unless property passes in a qualified domestic trust, the spouse becomes a U.S. citizen before the estate-tax return is filed and was a U.S. resident at all times after the death and before becoming a citizen, or another rule applies (IRC 2056(d)). A treaty may change the result in some cases, which the non-citizen guide discusses. We do not advise on foreign law. A tax adviser, often working with counsel abroad, reads any treaty.
New York domicile, the court, and succession
New York uses domicile for its own purposes. In Surrogate's Court, a domiciliary is a person domiciled in New York. If you die domiciled here, the main probate or administration is often filed in this state. If you die domiciled elsewhere and left property here, the New York case is often ancillary, for example when a will has already been probated or established where you were domiciled. That case is generally limited to property in New York (SCPA 1602). A later dispute is possible when you kept strong ties to more than one place. The court then looks at your facts, not at one label on a form.
For New York estate tax, a person domiciled here at death is generally treated as a resident. A nonresident's New York estate tax generally reaches real property and tangible personal property located in New York, not intangibles (Tax Law 960). The state result does not always match the federal result. Your tax adviser maps the returns.
Succession law is another layer. New York law often governs real property located here, and personal property is often governed by the law of your domicile at death. A will made by someone domiciled abroad may, in some cases, elect New York law for New York property (EPTL 3-5.1(h)). Many civil-law countries give a child a forced share that New York generally does not, and a spousal share that may differ from New York’s. Whether that rule reaches an asset depends on the asset and the facts. If you moved here with a will signed abroad, see moved to New York with a foreign will. We coordinate with counsel abroad when another country's law may matter.
Facts that often show domicile
No single fact decides domicile in every case. Courts and tax authorities often look at a group of practical details:
- Where you actually lived, and for how much of the year.
- Where your spouse or children lived.
- Which home was your base, and which home was a visit.
- Where you worked, kept a business, or saw doctors.
- A driver's license, a car, and where your main belongings were.
- What your will, tax returns, and immigration papers said about home.
- What you said, and what you did, about staying or about returning.
Intent matters, and intent is often shown by conduct. Time in New York is one fact. A green card is one fact. A plan to return to another country is one fact. Together they may point one way or the other, depending on the facts. Couples with ties in two places may also read cross-border marriages and our estate planning overview. The series starts at international estate planning.
How Schwartsman Law Group can help
Schwartsman Law Group practices New York law only. Our attorneys are admitted only in New York. We can help you think through how New York generally looks at domicile, which court may handle property here, and how a New York will may fit a family with ties abroad. Where another country's law or a foreign document is involved, we coordinate with counsel abroad. We do not advise on foreign law.
Tax residence, treaty tie-breakers, and estate-tax filings belong with your tax adviser or accountant. If you want to talk through your facts, request a Free Consultation, or call (212) 518-3868.
Country notes: questions to raise in a consultation
Which other country is in the picture often changes the plan. These are questions to bring to a Free Consultation, not answers for every family. Schwartsman Law Group practices New York law only. Where another country's law may matter, we coordinate with counsel abroad. Call (212) 518-3868.
- Is there a U.S. estate or gift tax treaty? Most countries have none. As of the IRS list reviewed on November 8, 2026, the United States has estate and/or gift tax treaty provisions with Australia, Austria, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, the Netherlands, South Africa, Switzerland, and the United Kingdom. Canada's estate provisions sit in Article XXIX B of the U.S.–Canada income tax treaty. Each treaty works differently. Check the current IRS estate and gift tax treaties page before relying on any country.
- Does a document need an apostille or consular legalization? That depends on whether both the country that issued the paper and the country that will use it are parties to the Hague Apostille Convention, with the Convention in force between them and without a relevant objection. Membership alone is not enough. Check the HCCH status table for the Apostille Convention. An apostille authenticates the origin, signature, capacity, and seal of a public document. It does not prove the contents are true, that the document is valid under local law, or that a New York court or clerk will accept it.
- Does the other country reserve fixed shares for family (forced heirship) or treat trusts differently? Many civil-law countries do. For property situated in New York, a will made by someone not domiciled in New York may, in some cases, elect New York law under EPTL 3-5.1(h). New York's highest court has applied such an election to reject a foreign forced-heirship claim to New York assets (Matter of Renard, 56 NY2d 973 (1982)). Results depend on the facts, and the election does not control property abroad. Foreign counsel should review the home-country side.
- Will an heir or beneficiary living abroad receive a New York share without court conditions? Under SCPA 2218, if a noncitizen beneficiary lives in a country to which U.S. government checks cannot be sent under federal rules, the court directs that the share be paid into court until a later court order. The court may also do so in some other cases, such as where a beneficiary would not have the benefit, use, or control of the money, or where a foreign country's laws effectively deny New York residents that benefit. Where it appears a noncitizen beneficiary may not have the benefit, use, or control of the share, that person generally has the burden of showing that they will. These questions turn on facts, not on nationality alone. The U.S. Supreme Court held an Oregon reciprocity statute unconstitutional as applied, because probing foreign regimes intruded on the federal foreign-affairs power (Zschernig v. Miller, 389 U.S. 429 (1968)).