With the non-U.S. citizen spouse, in order to avoid paying estate tax on the family fortune to the extent the family fortune exceeds the annual exclusion of income amout, a Qualified Domestic Trust or "QDOT" should be formed. This avoids the estate tax on the death of the first-to-die where the survivor has not obtained U.S. citizenship, for instance, because they do not want it. This way, the government makes sure that the assets somehow do eventually get taxed. Otherwise, the tax collector worries that the non-citizen spouse might inherit the money tax-free and then leave the country with it, avoiding U.S. tax forever.

To prevent this from happening, the law provides for a QDOT which has at least one U.S. trustee. The trustee can be an individual serving without bond, unless the trust assets are more than $2,000,000.00. With such a larger estate, the individual has to either get a letter of credit or be bonded, or give the reigns to a domestic corporate trustee, such as a bank or trust company.

If the QDOT is not created before the death of the first-to-die, a domestic trust can be reformed into a QDOT. However, parties who originally did not know of the QDOT may well overlook the potential of forming one after the first death, too. While a consultation with a qualified attorney immediately after the first death might bring the problem to light, the chances are that consultation might wait too long and that the attorney first consulted might not know about the urgency of reforming the domestic trust into a QDOT. Besides, there will be a lot of distress and adjustment after death of the first to die, and all of this trust work at that time will just add a lot to the stress, so it should be done now as part of the planning, instead. That way, there will be no worry about ending up paying estate tax on the estate of the first-to-die spouse.

If the non-U.S. citizen spouse has property in another country, such as the country in which they are a citizen, the law in that other country should be consulted as to how to best assure that it passes on or is treated the non-U.S. citizen spouse would like. The disposition attempted in a U.S. will or trust may not control what happens in that other country. In other words, a will, a trust, or whatever other means of transferring property at death is common in the other country will need to be done by a lawyer in that country, or whoever usually does such things in that other country, if the property there is big enough.