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Delaware Spousal Allowance
Support GuideDelaware11 min read

Delaware Spousal Allowance

Delaware gives a surviving spouse up to $7,500 under 12 Del. C. § 2308, but only on a written demand made inside the shorter of two deadlines.

By Settled Editorial

Delaware gives a surviving spouse one cash right in the estate, and it is smaller and stricter than most people expect. 12 Del. C. § 2308 allows up to $7,500, paid ahead of every other claim including the funeral bill. It is not paid automatically. The spouse has to demand it in writing, name a figure, send the demand to two places, and do all of that inside the shorter of two deadlines.

Say the rest plainly before going further, because readers usually arrive here after reading about another state. Delaware has no family maintenance allowance for children. Delaware has no exempt-property set-aside. Delaware has no homestead allowance and no probate homestead. The complete section list of 12 Del. C. ch. 23 was read on September 10, 2026, and § 2308 is the only allowance section in it.

Every rule below was read that day at delcode.delaware.gov, the State of Delaware's own publication of the Delaware Code. Section numbers sit beside each rule so you can check them yourself.

This page owns the allowance. For everything else a surviving spouse can claim, including the one third elective share, read the spouse's other claim.

What the Allowance Is

12 Del. C. § 2308(a) is one long sentence and it does three things.

The surviving spouse of any decedent is entitled to receive, and the executor or administrator shall pay to that spouse as soon as convenient, cash up to the amount of $7,500 out of the estate of the decedent. That is the entitlement, and the words "up to" matter: it is a ceiling, not a fixed payment, and the spouse names the sum being claimed.

The payment is made in the order of preference of claims against the estate in 12 Del. C. § 2105. That is where the allowance gets its real force, and the next section explains why.

The allowance does not affect any other rights the spouse may have, either under the will or under the intestacy laws of Delaware. A spouse who takes half the personal estate under 12 Del. C. § 502 still gets the allowance on top. A spouse left a specific gift by the will still gets the allowance on top. It is additive, not a credit against anything.

The section applies to the surviving spouse of ANY decedent, so it does not matter whether there was a will.

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Where It Sits Among the Debts

12 Del. C. § 2105(a) sets twelve classes of claim, paid after all administration expenses, fees and commissions. The surviving spouse's allowance under § 2308 is class one.

That puts it ahead of funeral expenses, ahead of child support arrears, ahead of the last-sickness medical bills, ahead of state taxes, and ahead of every judgment, mortgage obligation and ordinary demand below them. In an estate that cannot pay everyone, the spouse who demanded the allowance in time is paid first and the funeral home is paid second.

12 Del. C. § 2308(c) reinforces it from the other direction. The allowance is considered to be a debt of the estate, and the executor or administrator may sell as much of the decedent's property as it takes to pay it, in the same manner the law allows for paying other debts. A representative who says the estate has no cash is describing a problem the statute already solved.

For how the rest of the queue works, read the Delaware order of preference.

The Deadline, Worked Both Ways

12 Del. C. § 2308(b) is the subsection that decides whether any of the above happens. The allowance is of no effect unless and until the spouse notifies, in writing, both the Register of Wills of the county where the letters were granted and the executor or administrator, demanding that a specific sum not exceeding $7,500 be set aside out of the proceeds of the estate.

The window is 9 months from the date of death, or 6 months from the date of the granting of letters testamentary or of administration, WHICHEVER IS THE SHORTER PERIOD. Two readings follow, and a family needs to know which one applies to it.

Where letters are granted quickly, the six-month clock is the binding one. Letters granted one month after the death leave seven months from the death, not nine. Letters granted in week two leave a little over six.

Where the family waits, the nine-month clock binds. If more than three months pass before anyone opens the estate, six months from those letters would run past nine months from the death, so the nine-month date is the earlier one and it controls.

The safe practice is to write both dates down on the day the estate is opened and work to whichever comes first. There is no relief written into the section for a spouse who asks afterwards, and no good-cause extension.

Three things the subsection requires that are easy to get half right:

  • The notice must be WRITTEN. A conversation with the Register of Wills counter or with the executor does not satisfy it.
  • It must go to BOTH the Register of Wills of the county where letters were granted and the personal representative. One of the two is not enough.
  • It must demand a SPECIFIC SUM. A letter saying the spouse claims the allowance, without naming an amount up to $7,500, does not match what the subsection asks for.

Keep proof that both were delivered.

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Why It Matters Even When Nobody Wants the Money

12 Del. C. § 2306(a)(5) makes the allowance a condition on the small estate affidavit. The affidavit cannot be sworn until the surviving spouse's allowance has been paid, provided for, waived, or has expired by lapse of time under § 2308(b).

So in an estate with a surviving spouse, the question has to be answered even where the spouse never intended to claim anything. Either the spouse claims it, or waives it in writing, or the family waits for the § 2308(b) period to run out. A family that assumes the allowance is irrelevant because nobody wants the money can find the affidavit route blocked for months.

For the rest of the conditions on that route, read the small estate affidavit.

What Delaware Does Not Give

The absences here are as important as the allowance, because a reader who has looked at a neighbouring state will be expecting something Delaware does not have.

There is no family maintenance allowance. Many states pay a surviving spouse and minor children a periodic sum for support during the administration. Delaware does not, and no section of title 12 provides for one.

There is no exempt-property set-aside. Many states set apart household goods, furniture, appliances and a vehicle, often up to a fixed dollar figure. Delaware sets apart nothing of the kind. The nearest provision, 12 Del. C. § 1901(b), keeps three articles out of the INVENTORY: the family Bible, the clothes of the decedent, and the family stores laid in before the death. There is no value limit on those articles, which sounds generous until you read what the subsection does with them. It awards them to nobody by name. It shields them from no creditor. It states no value. Its practical effect is that those articles also sit outside the measure of the $50,000 small estate affidavit under 12 Del. C. § 2306, which occasionally helps an estate qualify.

There is no homestead exemption and no probate homestead. The $200,000 principal-residence figure that search results attach to Delaware sits in 10 Del. C. § 4914, and every operative subsection of that section opens with the words "In any federal bankruptcy or state insolvency proceeding". It reaches neither a decedent's estate nor an ordinary judgment creditor.

There is no dower. 12 Del. C. § 511 abolished dower and curtesy in one sentence.

What It Costs to Ask

The demand itself is a filing with the Register of Wills, and the fee is set by the county rather than by the state. 12 Del. C. § 2510 gives the governing body of each county the power to determine the fees its Register of Wills charges, and § 2511 requires each Register to keep the current list posted for public inspection.

The two counties whose published schedules carry a line for it charge differently. Kent County lists a spousal allowance at $30.00. Sussex County lists claims and surviving spouse allowance at $5.00. The New Castle County schedule as published carries no separate line for the spousal allowance, so ask that office what it charges rather than assuming one of the other two figures applies.

Whatever the filing costs, it is small against a $7,500 first-priority claim, and the cost is not a reason to let the deadline run.

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What To Do This Week

If you are a surviving spouse and an estate has been opened, or is about to be:

  1. Write down two dates: nine months from the death, and six months from the grant of letters. Work to whichever is earlier.
  2. Write one letter demanding a specific sum, up to $7,500, be set aside under 12 Del. C. § 2308.
  3. Send it to the Register of Wills of the county where the letters were granted, and to the executor or administrator. Keep proof of both.
  4. Ask that office what it charges to file the demand.
  5. Separately, check whether you also want to claim the elective share. It is a different right, with a different deadline, and it is filed in the Court of Chancery rather than with the Register of Wills.

Why Trust This Page

This page describes Delaware law broadly rather than advising on one estate. Every rule on it was read on September 10, 2026 in the Delaware Code at delcode.delaware.gov, the State of Delaware's own publication, and each section number sits beside the rule it supports so you can check it yourself. Confirm every date and dollar figure with the Register of Wills in the county where the decedent lived, or with a licensed Delaware attorney, before you act on it. Settled Estate is not a law firm. It is not legal advice.

Sources:

Information current as of September 10, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Delaware can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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