Delaware

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Elective Share

A surviving spouse may elect to take against the will an amount equal to one-third of the “elective estate” less the amount of all transfers to the surviving spouse by the decedent. Del. Code. Ann. § 12-901. The “elective estate” is defined as the amount of the decedent’s gross estate for federal estate tax purposes.

The surviving spouse must file a petition with the Court of Chancery or delivering to the personal representative the petition for the elective share within six months after the grant of letters testamentary or letters of administration.  Del. Code. Ann. § 12-906.  The Court, upon a petition, may extend this time for filing an election by the surviving spouse.

Intestacy

According to Del. Code. Ann. § 12-502 the intestate (if the decedent died without a will) share of the surviving spouse is:

(1) If there is no surviving issue or parents of the decedent, the entire intestate estate;

(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $50,000 of the intestate personal estate, plus one half of the balance of the intestate personal estate, plus a life estate in the intestate real estate;

(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000 of the intestate personal estate, plus one half of the balance of the intestate personal estate, plus a life estate in the intestate real estate;

(4) If there are surviving issue, one or more of whom are not issue of the surviving spouse, one half of the intestate personal estate, plus a life estate in the intestate real estate.

Spousal Allowance

The surviving spouse is entitled to receive up to the amount of $7,500 out of the estate of the decedent.  The allowance to the surviving spouse of a decedent shall be made within the shorter of 9 months from the date of death or 6 months from the date of the granting of letters, testamentary or of administration. Del. Code. Ann. §§ 12-2308(a)-(b).

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