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Delaware Surviving Spouse Rights
Pillar GuideDelaware29 min read

Delaware Surviving Spouse Rights

Delaware gives a surviving spouse a third of the elective estate and a $7,500 allowance, and both are lost by silence.

By Settled Editorial

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Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

A Delaware will can leave a surviving spouse out, and 12 Del. C. § 901 gives that spouse a way to take one third of the elective estate anyway, less everything the decedent had already transferred to them. A second section, 12 Del. C. § 2308, adds up to $7,500 in cash. Both rights belong to the spouse alone, both run on their own deadline, and both are lost by saying nothing.

Three features of the Delaware answer catch people who read a generic summary first. The elective estate is measured by the federal estate tax return, so it counts life insurance, retirement accounts and property the decedent put in a revocable trust. The pool that actually pays the share is far narrower, because § 908(b) limits it to property the decedent owned alone at death. And Delaware gives a surviving spouse none of the extra protections a reader may have met in another state: no homestead exemption, no family maintenance allowance, no exempt-property set-aside, no dower.

Every rule below was read on September 10, 2026 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 answers what a surviving spouse can claim. For how a Delaware estate is opened, run and closed, read the Delaware probate process.

Two Rights, and Delaware Stops There

The Delaware probate code protects a surviving spouse in two places, and they work on different mechanics.

  • The elective share, 12 Del. C. §§ 901 through 908. A right to elect one third of the elective estate in place of accepting what the decedent left. This is the part that limits what a will can do.
  • The surviving spouse's allowance, 12 Del. C. § 2308. Cash up to $7,500, paid ahead of every other claim against the estate under § 2105(a)(1).

Nothing forces a choice between them. § 907(b) says it in one line: a surviving spouse is entitled to the surviving spouse's allowance whether or not the surviving spouse elects to take an elective share.

Two Delaware offices are involved and they are not the same office. The Register of Wills of the county grants letters and receives the § 2308 demand. The elective share petition goes to the Court of Chancery under § 906(a).

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The Elective Share Is One Third, Minus What the Spouse Already Received

12 Del. C. § 901(a) states the right in a single sentence. Where a married person domiciled in Delaware dies, the surviving spouse has a right of election to take an elective share equal to one third of the elective estate, less the amount of all transfers to the surviving spouse by the decedent.

Two mechanics ride in the same subsection. The share may be satisfied in cash or in kind, or partly in each, so a spouse cannot insist on money. And assets distributed in satisfaction of the share are valued at the date of distribution rather than at the date of death, which matters when a market moves during an administration.

§ 901(b) sends one case elsewhere. Where the decedent was not domiciled in Delaware, the right of a surviving spouse to elect against real or tangible personal property is governed by the law of the situs of that property. The same rule applies when a Delaware elective share is being computed and the estate holds land in another state.

The Elective Estate Starts From a Federal Estate Tax Return

Read the fraction against the right pool. 12 Del. C. § 902(a) defines the elective estate as the amount of the decedent's gross estate for federal estate tax purposes, regardless of whether a federal estate tax return is filed, modified two ways:

  1. Less the deductions allowable under 26 U.S.C. §§ 2053 and 2054, which are the debts, administration expenses and casualty losses of the estate.
  2. One half of certain spousal joint interests. The gross estate includes one half of any interest in property created at any time, including interests created before January 1, 1977, held by the decedent and the surviving spouse as tenants by the entirety, or as joint tenants with right of survivorship where the decedent and the surviving spouse are the only joint tenants.

Starting from the federal gross estate is the single largest reason a Delaware elective share reaches further than a family expects. The gross estate is not the probate estate. It picks up life insurance on the decedent's life, retirement accounts, annuities and property held in a revocable trust, none of which passes through the Register of Wills.

§ 902(b) covers the case where the federal estate tax has been repealed on the date of death. Every term in chapter 9 that depends on the federal estate tax then refers to the Code as it stood on the last date the tax applied to estates of people dying before that death.

§ 902(c) puts real work on the personal representative. In every case where an elective share petition has been filed, the personal representative shall prepare a Form 706, the United States Estate Tax Return, whether or not the form has to be filed. A copy goes to the surviving spouse by the latest of the Form 706 due date as extended, 15 months from the date of death where no return is required, or three months after the petition was timely filed. A spouse who cannot see the numbers has a statute to point at.

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Everything the Decedent Already Gave the Spouse Comes Off the Top

12 Del. C. § 903 defines the subtraction in § 901(a). It equals the value of the property derived from the decedent by virtue of death, and the section lists what that reaches:

  • property in the decedent's estate that passes to the surviving spouse by testate or intestate succession
  • lifetime transfers to the spouse includable in the gross estate under 26 U.S.C. § 2036
  • one half of any tenancy by the entirety, and of any joint tenancy with right of survivorship where the spouses are the only joint tenants
  • any beneficial interest of the spouse in a trust the decedent created during life or under the will
  • property appointed to the spouse by the decedent's exercise of a general or special power of appointment
  • lump sums and the present value of future payments from life insurance on the decedent's life, including accidental death benefits, where the proceeds are includible in the gross estate
  • lump sums and the present value of future payments under annuity contracts, pension and retirement plans, disability compensation, death benefits, salary continuation, deferred compensation and individual retirement accounts
  • lump sums and the present value of future payments under any other trust, contract or arrangement attributable to property the decedent transferred during life
  • the value of the spouse's share resulting from rights in community property the decedent owned in Delaware or in any other state

Social Security is carved out by name, along with any similar state or federal retirement system that gives a surviving spouse an individual right to payments because of the death.

Two timing rules sit at the end of the section. Property owned by the spouse at the death is valued as of the date used to compute the elective estate, and income the included property earned before the death is not treated as derived from the decedent.

Disclaiming will not defeat the subtraction. Under § 903(3), property considered derived from the decedent that the surviving spouse disclaims or renounces is still counted as though it had never been disclaimed. The section carves out one narrow trust case. Where the spouse holds the leading beneficial interest in a trust that neither qualifies for the federal marital deduction nor provides amounts payable in the future whose present value can be determined at the date of death, an interest the spouse disclaims in that trust drops out of the count. § 903(3)b. sets three tests for that position: the governing instrument names the spouse first, no other beneficiary may take distributions during the spouse's lifetime, or other beneficiaries may take discretionary distributions only after the spouse's interest is taken into account and only on an ascertainable standard.

The Pool That Is Measured and the Pool That Pays Are Different

This asymmetry decides how much money actually changes hands, and almost no summary states it. § 902 builds a wide measure. § 908(b) then defines a narrow group of people who have to fund it.

The decedent's contributing estate consists of only that portion of the elective estate that the decedent owned solely at death and that was not transferred or deemed transferred to the surviving spouse under § 903(1). The subsection then rules three things out by name.

PropertyCounted in the elective estate under § 902Liable to pay under § 908(b)
Assets the decedent owned alone at deathYesYes
A home held by the spouses as tenants by the entiretyOne halfNo
Other jointly owned property with right of survivorshipAs the federal gross estate rules include itNo
Life insurance payable to a beneficiary other than the estateAs the federal gross estate rules include itNo
Property held in trustAs the federal gross estate rules include itNo

Follow that to its conclusion. A decedent who funded a revocable trust with most of what they owned raises the elective estate, and so raises the one third, while leaving a contributing estate too small to pay it. The share is a number the Court of Chancery fixes, and § 908(a) then collects it only from the recipients of the contributing estate.

§ 908(a) sets the apportionment. Liability is divided among those recipients in the proportion, as near as may be, that the value of each recipient's property bears to the total value received by all of them. Where somebody holds an interest in income, an estate for years, a life estate or another temporary interest, the liability on both that interest and the remainder after it is charged in rem against the corpus of the property instead of being split between the temporary holder and the remainder owners. Until it is paid, the elective share is a proportionate charge against the properties making up the contributing estate. Nobody has to contribute more than they would have had the spouse pursued every person and every asset subject to contribution.

§ 908(c) gives a recipient a choice. They may pay their proportionate share of the liability, or give up the property and be relieved of personal liability, and a recipient who gives it up keeps any value realized on a later sale above their proportionate liability.

Six Months From the Letters, and the Extension Has to Come First

12 Del. C. § 906(a) sets the deadline. The surviving spouse elects by filing a petition for the elective share in the Court of Chancery and mailing or delivering it to the personal representative, within 6 months after the grant of letters testamentary or of administration.

The anchor is the letters. A death with no estate opened starts no clock at all, and an estate opened a year after the death still gives the spouse a full six months.

Here is the sentence that decides real cases. The Court, upon petition, may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired. Asking on the day after month six is asking the Court to do something § 906(a) does not authorize. A spouse who needs an appraisal, a Form 706 or a trust accounting files a petition for more time inside the window and litigates the merits afterward.

The rest of the section runs the proceeding:

  • Notice. § 906(b) requires at least 10 days' notice by certified mail of the time and place set for the hearing, to persons interested in the estate and to the distributees and recipients of portions of the elective estate whose interests the election would cut into.
  • Withdrawal. § 906(c) lets the spouse withdraw the demand any time before the Court of Chancery enters a final determination.
  • The judgment. § 906(d) has the Court determine the amount, apportion liability among the recipients of the contributing estate, and direct payment. Where a fund or property in the elective estate never reached the personal representative, or was already distributed, the Court still fixes the liability of whoever holds it or has an interest in it, as trustee or otherwise.
  • Enforcement. § 906(e) allows the order to be enforced in other Delaware courts and in other jurisdictions by suit for contribution or payment.
  • Freezing assets. § 906(f) lets the Court restrain any person from paying out or transferring property that forms part of the contributing estate, before or after the petition is filed.
  • Real estate already sold. § 906(g) protects a transferee or lienholder who gave bona fide consideration to the person who took the real property from the decedent, unless a certified copy of the judgment was recorded in the county deed office before the deed or mortgage was recorded.
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Electing Does Not Cancel the Will by Itself

12 Del. C. § 907(a) prevents a common misreading. The election does not affect the share of the surviving spouse under the decedent's will, under any trust the decedent established, or under the intestate succession laws, unless the spouse also expressly disclaims those provisions under chapter 6 of Title 12 or expressly renounces them in the elective share petition.

Renouncing has a price and a sting. Property the spouse disclaims or renounces is treated as if the spouse had predeceased the decedent for all purposes, which sends it to the next taker. That same property is still deemed transferred to the surviving spouse for the §§ 903 and 901(a) subtraction. Giving up a bequest does not enlarge the one third.

The Right Is Personal and Dies With the Spouse

12 Del. C. § 904 confines the election to the surviving spouse's own lifetime. A spouse who dies without having elected leaves nothing for anyone to elect. Where the spouse did elect and then died, the personal representative of the spouse's estate succeeds to the rights under that election.

For a protected person, meaning a minor or a person for whom a guardian or trustee has been appointed or another protective order has been made, the right may be exercised only by order of the court where the protective proceedings over that person's property are pending. That court has to find first that exercising the election is necessary for the adequate support of the protected person during a probable life expectancy.

Waiving the Elective Share

12 Del. C. § 905 allows a waiver, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving.

General language carries further than people expect. Unless the document says otherwise, a waiver of "all rights" or equivalent language in the property or estate of a present or prospective spouse, and a complete property settlement entered into after or in anticipation of separation or divorce, waives all rights to the elective share and renounces the benefits that would otherwise pass by intestate succession or under any will executed before the waiver.

Read the section for what it leaves out as well. § 905 writes in no disclosure requirement, no unconscionability test and no independent-counsel rule of its own. Attacking a Delaware waiver means arguing from general contract law and the Court of Chancery's decisions rather than from a checklist inside chapter 9.

The $7,500 Allowance, and the Written Demand That Unlocks It

12 Del. C. § 2308(a) entitles the surviving spouse of any decedent to receive cash up to $7,500 out of the estate, and directs the executor or administrator to pay it as soon as convenient. It does not touch any other right the spouse has under the will or under the intestacy laws.

Subsection (b) is where the money is usually lost. The allowance is of no effect unless the spouse notifies, in writing, both of the following, demanding that a specific sum not exceeding $7,500 be set aside:

  • the Register of Wills of the county where the letters were granted, and
  • the executor or administrator

The window is the shorter of 9 months from the date of death or 6 months from the grant of letters. Two clocks start on different events, and the one that closes first controls. An estate opened promptly after a death closes the demand window at month six. An estate opened seven months after a death closes it at month nine.

Subsection (c) makes the allowance a debt of the estate and lets the personal representative sell property to pay it, the same way any other debt of the estate is funded. § 2105(a)(1) ranks it first among claims, ahead of funeral expenses, child support arrears and last-sickness bills. The full ranking is set out in the Delaware order of preference for claims, and the demand itself, with its two recipients and its shorter-of deadline, is covered in the $7,500 spousal allowance.

The allowance also reaches past the probate estate in two directions worth knowing:

  • It gates the small-estate route. 12 Del. C. § 2306(a)(5) makes the affidavit that avoids letters unavailable until the § 2308 allowance has been paid, provided for, waived, or expired by lapse of time. See the Delaware small estate affidavit.
  • It follows a transfer-on-death deed. 25 Del. C. § 215(a) lets the estate enforce a statutory allowance to a surviving spouse against real property that passed by a Delaware transfer-on-death deed where the probate estate is not enough to satisfy it. Subsection (b) apportions the liability across several such properties by net value, and subsection (c) gives 8 months from the death to commence the proceeding.

What Delaware Does Not Give a Surviving Spouse

Four absences, each read at the official source, because a wrong expectation costs a family as much as a wrong number.

No homestead exemption. The $200,000 principal-residence figure that search results attach to Delaware belongs to 10 Del. C. § 4914, and every operative subsection of that section opens "In any federal bankruptcy or state insolvency proceeding". It reaches neither a decedent's estate nor an ordinary judgment creditor. The complete section list of 10 Del. C. ch. 49 subchapter I runs §§ 4901 through 4916, with catchlines from Real estate and Exempt property through Exemption of qualified tuition programs, and it contains no homestead section.

No family maintenance allowance. Title 12 authorizes no periodic support payment to a widow, widower or minor child during an administration. The one cash entitlement in the Delaware probate code is § 2308, and it is a single sum with a ceiling.

No exempt-property set-aside. The nearest thing in Title 12 is an inventory rule rather than an award. 12 Del. C. § 1901(b) keeps three items out of the inventory: the family Bible, the clothes of the decedent, and the family stores laid in before the death. That keeps them out of the personal estate the personal representative accounts for, and it names no recipient.

No dower and no curtesy. 12 Del. C. § 511 is one sentence: the estates of dower and curtesy are abolished. The vocabulary survives in the code as an artifact. 12 Del. C. § 303(b) still directs freeholders laying off an after-born child's share to work around a surviving spouse "entitled to dower or thirds", language left over from the law § 511 replaced. Nothing in that cross-reference revives a right for a spouse to claim.

With No Will, the Share Comes From a Different Section

The elective share answers what a will can do. Where the decedent left no will, 12 Del. C. § 502 states the surviving spouse's share directly and no fraction of an elective estate is involved:

  • no issue and no parent surviving: the entire intestate estate
  • a parent surviving with no issue: the first $50,000 of the intestate personal estate, half the balance of that personal estate, and a life estate in the intestate real estate
  • issue surviving, all of whom are also the spouse's issue: the same $50,000, half the balance, and the life estate
  • issue surviving, one or more of whom are not the spouse's issue: half the intestate personal estate and the life estate, with no $50,000

A Delaware surviving spouse takes a life estate in the intestate real estate in three of those four branches, never a fee, and the $50,000 is measured against the personal estate alone. The branch-by-branch answer is in Delaware intestate succession.

Nothing in § 901 limits the election to an estate with a will, and § 907(a) names the intestate succession laws beside the will and any trust the decedent created. What makes the election rare in an intestacy is arithmetic rather than eligibility: § 903(1)a. counts everything passing to the spouse by intestate succession as a transfer that comes off the one third.

A Will Signed Before the Marriage

Delaware protects a spouse the testator married after signing, in its own short subchapter.

12 Del. C. § 321 covers the descent or devolution of the estate of a married person who made a will before the marriage and made no provision for that spouse by will or otherwise. The surviving spouse takes the same part of the estate, real and personal, that they would have been entitled to had the decedent died intestate. The section is written in the gendered language of its 1933 enactment, addressing a widow in paragraph (1) and a husband in paragraph (2).

12 Del. C. § 322 assigns and distributes that part the same way an intestate share is assigned. Where several devisees take the real estate or several legatees take the personal estate, each contributes a just portion of it.

12 Del. C. § 323 closes the loop from the other side: a later marriage does not revoke the will of a person who made provision for a surviving spouse, by that will or otherwise. What the will says about the spouse decides whether the marriage disturbs it. The signing and witnessing rules the document itself has to satisfy are in Delaware will requirements.

The Spouse Has the First Right to Serve

12 Del. C. § 1505(b)(1) puts the spouse of the decedent at the head of the classes entitled to letters of administration, ahead of children, parents and siblings, and the Register of Wills grants those letters on the bond Title 12 requires. Where every member of that first class fails to give bond, renounces or is incapacitated, § 1505(b)(3) lets them agree in writing on somebody else, and § 1505(c) sends the question to the Court of Chancery when they cannot agree.

One deadline sits in § 1505(d). Where no petition for administration is filed within 60 days from the date of death, the Register of Wills may grant letters to whoever the Register decides. A surviving spouse who wants the appointment should not let that date pass. What the job involves afterward is set out in Delaware executor duties.

Where These Rights Surface in a Delaware Estate

Each item states what the statutes provide. None of it is a recommendation about a particular estate.

  • Two deadlines, two anchors. The § 2308 demand runs on the shorter of 9 months from the death or 6 months from the letters. The § 906 election runs 6 months from the letters alone. Both fit inside the Delaware probate timeline.
  • The allowance outranks the creditors. § 2105(a)(1) pays it before funeral expenses, and the 8-month claim bar in § 2102(a) governs everybody else. See Delaware creditor claims.
  • Most of a modern estate never passes under the will. Beneficiary designations, survivorship accounts and revocable trusts move outside probate. § 902 counts them in the elective estate anyway, and § 908(b) exempts them from paying it.
  • A Form 706 exists whenever an election is filed. § 902(c) requires the personal representative to prepare one and give the surviving spouse a copy, whether or not the estate owes federal estate tax.
  • The tax bill is a separate question from the inheritance. What a surviving spouse owes on selling inherited property turns on step-up in basis in Delaware.
  • Chancery decides the share, the Register of Wills runs the estate. The election is filed in the Court of Chancery under § 906(a). The letters, the inventory and the § 2308 demand belong to the county Register of Wills.

When to Talk to a Delaware Lawyer

A licensed Delaware attorney earns the fee where:

  • the decedent funded a revocable trust, so the elective estate is large and the contributing estate under § 908(b) is small
  • the estate holds life insurance, retirement accounts or annuities that raise the measure without funding it
  • the six months from letters is running and an appraisal or a Form 706 is not ready, which makes the § 906(a) extension petition urgent
  • a prenuptial agreement, postnuptial agreement or property settlement contains a waiver of "all rights"
  • the decedent died domiciled outside Delaware and owned Delaware real estate, which puts the § 901(b) situs rule in play
  • a blended family sets children of an earlier marriage against the surviving spouse
  • the surviving spouse is a protected person, so § 904 requires an order from the court supervising their property
  • real property that formed part of the contributing estate has already been sold or mortgaged, which raises § 906(g)

This page organizes the statutes and the questions worth asking. Confirm anything that decides a particular estate with the Register of Wills handling it or with a licensed Delaware attorney.

Frequently Asked Questions

Can a Delaware will disinherit a surviving spouse?

Not on its own. 12 Del. C. § 901 lets the surviving spouse of a married person who dies domiciled in Delaware elect one third of the elective estate, less the amount of all transfers to that spouse by the decedent. The right has to be exercised. § 906(a) requires a petition filed in the Court of Chancery and mailed or delivered to the personal representative within 6 months after the grant of letters, and a spouse who files nothing takes only what the will provides.

How much is the Delaware elective share?

One third of the elective estate, reduced by everything the decedent already transferred to the surviving spouse. 12 Del. C. § 902 measures the elective estate by the decedent's gross estate for federal estate tax purposes, whether or not a federal return is filed, less the deductions allowable under 26 U.S.C. §§ 2053 and 2054, and counting one half of any tenancy by the entirety or joint tenancy with right of survivorship where the two spouses are the only joint tenants. § 901 lets the share be satisfied in cash or in kind, with assets valued at the date of distribution.

What is the deadline to claim the Delaware elective share?

Six months after the grant of letters testamentary or of administration, under 12 Del. C. § 906(a). The clock runs from the letters, not from the date of death. The Court of Chancery may extend the time for cause shown, but only on a petition made by the surviving spouse before the time for election has expired. There is no relief written into the section for a spouse who asks after the six months have run.

What is the Delaware surviving spouse's allowance?

12 Del. C. § 2308 entitles a surviving spouse to cash up to $7,500 out of the estate, and § 2105(a)(1) puts it first in the order of preference, ahead of funeral expenses. Subsection (b) makes it of no effect unless the spouse notifies the Register of Wills of the county where letters were granted and the executor or administrator, in writing, demanding a specific sum, within 9 months from the date of death or 6 months from the grant of letters, whichever period is shorter.

Does Delaware have a homestead exemption for a surviving spouse?

No. The Delaware probate code creates no homestead right, no probate homestead and no exempt-property set-aside. 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", so it reaches neither a decedent's estate nor an ordinary judgment creditor. The complete section list of 10 Del. C. ch. 49 subchapter I, §§ 4901 through 4916, contains no homestead section at all.

Does a Delaware surviving spouse still have dower rights?

No. 12 Del. C. § 511 is one sentence: the estates of dower and curtesy are abolished. The words survive elsewhere in the code as an artifact, because 12 Del. C. § 303(b) still speaks of a surviving spouse entitled to dower or thirds when freeholders lay off an after-born child's share. That cross-reference is left over from the law § 511 replaced and gives a surviving spouse nothing to claim.

Can a Delaware prenuptial agreement waive the elective share?

Yes. 12 Del. C. § 905 lets the right of election be waived wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving. A waiver of "all rights" or equivalent language, and a complete property settlement entered into after or in anticipation of separation or divorce, waives the elective share and renounces benefits that would otherwise pass by intestate succession or under a will executed before the waiver. § 905 itself writes in no disclosure test and no unconscionability test.

Sources:

It is not legal advice.

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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