Surviving spouse rights in Delaware include:
- Intestate Share (no will)
- Elective Share
- Spousal Allowance
Surviving Spouse Rights When There Is No Valid Will
When a decedent dies without a valid will, they have died intestate. Intestacy means that the laws of Delaware will govern the beneficiaries of the estate, and the shares to which the beneficiaries are entitled. The widow’s share of the intestate estate depends on the other surviving heirs of the decedent.
According to Del. Code. Ann. § 12-502 the intestate share of the surviving spouse is:
- If there is no surviving issue or parents of the decedent, the entire intestate estate;
- 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;
- 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;
- 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.
Right to Elective Share
If the decedent died with a valid will, a Delaware surviving spouse has the right to 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, after certain deductions.
In order to pursue the right to the elective share, the surviving spouse must file a petition with the Court of Chancery or deliver 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. The surviving spouse must file the petition for extension before the six month deadline.
Surviving Spouse’s Right To 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). The spousal allowance is without regard to the elective share.
