DE estate risk
Intestacy risk in Delaware
How assets are distributed when there is no will and state default rules control the outcome.
Delaware intestacy gives the surviving spouse a dollar-based share of personal property and, in some cases, a life estate in real property, with the remainder passing to heirs by statute.
At a glance
Key takeaways
- If there is no surviving issue or parents, the spouse receives the entire intestate estate.
- If parents survive but no issue, the spouse receives the first $50,000 of intestate personal estate plus one-half of the balance and a life estate in intestate real estate.
- If issue survive and are all the spouse's issue, the spouse receives the same $50,000 plus one-half of the balance and a life estate in intestate real estate.
- Any portion not passing to the spouse goes to issue per stirpes; if none, to parents; then to issue of parents; then next of kin.
Questions to consider
Questions to consider in Delaware
- Who inherits first if there is no will?
- How do spouse and children shares change by scenario?
- What are the most common surprises families face?
State overview
Delaware intestacy gives the surviving spouse a dollar-based share of personal property and, in some cases, a life estate in real property, with the remainder passing to heirs by statute.
- If there is no surviving issue or parents, the spouse receives the entire intestate estate.
- If parents survive but no issue, the spouse receives the first $50,000 of intestate personal estate plus one-half of the balance and a life estate in intestate real estate.
- If issue survive and are all the spouse's issue, the spouse receives the same $50,000 plus one-half of the balance and a life estate in intestate real estate.
- Any portion not passing to the spouse goes to issue per stirpes; if none, to parents; then to issue of parents; then next of kin.
- An heir must survive the decedent by 120 hours to inherit under intestacy.
Sources
- https://delcode.delaware.gov/title12/c005/index.html
- https://delcode.delaware.gov/title12/Title12.pdf
- https://www.nolo.com/legal-encyclopedia/intestate-succession-delaware.html
- https://law.justia.com/codes/delaware/title-12/chapter-5/section-504/
Background sources
- Uniform Probate Code (2019) - Intestate succession (Article II)
Article II, Part 1 covers intestate succession, spouse/descendant shares, and representation rules.
National sources provide baseline context; state statutes and court rules control in Delaware.
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