Mortgage Debt: Hidden U.S. Estate Tax Trap For Foreign Investors

Forbes

11 hours ago

Foreign investors are often very surprised to learn that a leveraged U.S. real estate investment ... More using recourse debt will often not shield the foreign investor from U.S. estate tax exposure. This article explores the mortgage debt surprise, why it matters, and how foreign investors can navigate it. getty
Foreign investment in U.S. real estate is quite significant with investors being drawn because of the market's stability, robust and reliable legal protections, and the potential for capital growth. U.S. real estate is a core wealth-building strategy for nonresident alien individuals (those who are not U.S. citizens and are not domiciled in the U.S.).
Many NRA investors are caught off-guard by various aspects of the U.S. estate tax which is imposed at death on the fair market value of U.S. situs assets, such as American real estate. The maximum estate tax rate of 40% can certainly take a big chunk out of the investment. With experienced U.S. tax advice, foreigners can carefully plan their investment strategies to minimize (if not eliminate) this tax.
A lesser-known aspect of the U.S. estate tax regime involves the limited deductibility of recourse mortgage debt on U.S. real property. A leveraged real estate investment using recourse debt will often not shield the foreign investor from U.S. estate tax exposure. This article explores the mortgage debt surprise, why it matters, and how foreign investors can navigate it.
When an NRA passes away owning U.S. real estate, which is a U.S.-situs asset, the value of that property is included in their U.S. taxable estate, subject to estate tax rates up to 40%. Many investors assume they can deduct the full amount of any mortgage tied to the property from its fair market value thus reducing the taxable estate. This would make sense since the net equity represents the NRA's economic interest in the property. The U.S. tax rules, however, apply a different rule for recourse versus nonrecourse debt often creating a costly surprise to the estate.
By way of overview, when a mortgage debt is 'recourse', it allows the lender to pursue other assets of the borrower (or his estate) if there is any shortfall if the property's sale will not cover the amount loaned. Thus, in the case of a decedent, the estate is held liable for the debt. Nonrecourse mortgage debt limits the lender's recovery to the property itself; the creditor has 'no recourse' to the estate's other assets.
Under the U.S. estate tax rules, nonrecourse debt is fully deductible to offset the value of the U.S. real property. The lender can seize only the real property and no other assets and the estate isn't liable for any shortfall. Permitting the full mortgage loan to offset the value of the property reflects the estate's true economic interest, as the lender has no claim on other assets.
In the case of recourse debt, however, only a portion of recourse mortgage debt is deductible by the estate. The deductible amount is proportional to the ratio of the U.S.-situs assets' value to the value of the decedent's worldwide assets.
Here is an example. Assume an NRA has a worldwide estate valued at $10 million. This includes $2 million of U.S. real property which is encumbered by a $1 million recourse mortgage. The U.S. property represents 20% of the worldwide estate ($2M/$10M), so only 20% of the mortgage ($200,000) can be deducted. The taxable value in the estate of $1.8 million can result in an approximate estate tax of $720,000 (assuming no exemptions or credits). The distinction between recourse and nonrecourse debt catches out many investors who are relying on leverage to maximize returns and are expecting the full debt to offset their U.S. estate tax exposure. In this example, the result will come as a surprise since the investor's expectation would be that the U.S. property would have a $1 million taxable value after deducting the full mortgage. Why The U.S. Estate Tax Limitation for Recourse Debt?
The limitation on deducting recourse mortgage debt for U.S. estate tax purposes is a mechanism to prevent the estate being able to offset U.S. estate tax using a global debt obligation even when the estate has other non-U.S. assets to repay the loan. Recourse debt renders the estate liable for repayment, potentially using worldwide assets. The tax law restricts the mortgage deduction in such a case to prevent an over-reduction of the U.S. taxable estate.
The deduction is made proportional to the U.S.-situs assets' share of the worldwide estate precisely because the estate's liability for the debt is not limited to U.S. assets. This ensures the U.S. taxes the estate's net U.S. property value while accounting for global obligations, unlike nonrecourse debt, which is fully deductible because it is tied only to the equity in the U.S. property. The pro-rata formula is found in IRC Section 2106(a)(1) and its relevant Treasury Regulations and Treasury Regulation Section 20.2053-7.
Assume an NRA owns U.S. real estate having a value of $5 million and that it is subject to a $3 million recourse mortgage. The NRA has foreign assets worth $15 million. Without the recourse debt limitation, the $3M recourse debt would be fully deductible, and the NRA's U.S. taxable estate would be just $2M. This would permit the estate to offset U.S. estate tax using a global debt obligation, even though the estate has $15M of foreign assets with which to repay the loan. To prevent overly reducing the U.S. taxable estate, the pro-rate formula is used. U.S. Real Property - The Surprise Recourse Debt Limitation Really Matters
The limited deduction for recourse debt can dramatically increase tax liabilities, particularly given the low $60,000 estate tax exemption for NRAs (compared to $13.99 million for U.S. citizens and domiciliaries in 2025). Even modest U.S. real estate holdings can trigger significant taxes.
In addition, calculating the proportional deduction requires disclosing the fair market value of the decedent's worldwide assets on IRS Form 706-NA. Such disclosure raises serious privacy concerns for investors who do not wish to reveal their global holdings. This disclosure requirement, combined with the unexpected tax burden, makes the recourse mortgage debt rule a double blow for unprepared investors. Strategies Can Mitigate The Mortgage Debt Problem
There are various strategies foreign investors can adopt, depending on the facts and the investor's priorities. A qualified tax professional can assist, balancing favorable tax outcomes with practical considerations. For example, ownership structures can avoid U.S. estate tax but involve more complexity, costs and tax compliance; the investor can opt for nonrecourse debt which will mean the full debt amount can reduce the taxable estate but likely means higher interest rates or stricter terms will apply, since the lender bears greater risk. Life insurance can be explored, as well as the possible use of estate tax treaties.
Every strategy will involve trade-offs, making professional advice indispensable. Proactive planning can help the U.S. real estate investment remain lucrative without the harsh surprise of unexpected estate tax liability.
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This communication is for general informational purposes only. It is not intended to constitute tax advice or a recommended course of action. Professional tax advice should be sought as the information here is not intended to be, and should not be, relied upon by the reader in making a decision.