DE risk areas
Delaware estate risk areas
These pages explain how default state rules in Delaware shape inheritance, probate, guardianship, taxes, and complexity. Start with the risk area that matches your biggest concern.
How to use this guide
- Read the risk summaries to understand default outcomes.
- Open a risk guide for state-specific details and sources.
- Use this as education, not legal advice.
Intestacy risk
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.
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Probate risk
Delaware permits distribution of personal property by affidavit without letters when estate assets do not exceed the statutory small-estate threshold.
- Small-estate affidavit is available when personal estate assets do not exceed $30,000.
- Eligible persons can distribute the estate without appointment of a personal representative.
- Distribution must follow the will or Delaware intestacy rules.
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Tax exposure
Delaware's estate tax was repealed for deaths on or after January 1, 2018.
- Delaware's Estate Tax chapter is repealed effective January 1, 2018.
- Delaware estate tax returns are not required for deaths on or after January 1, 2018.
- With no state death tax, tax exposure is primarily federal when the estate exceeds the federal exemption.
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Guardianship risk
Delaware courts grant guardianship of a child based on parental consent or a court finding that guardianship serves the child's best interests.
- Parental consent can support a guardianship appointment.
- If parents do not consent, the court must find dependency, neglect, or abuse and that guardianship is in the child's best interests.
- Courts rely on best-interest findings when appointing a guardian.
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Complexity triggers
Delaware provides a spousal elective share and a separate allowance claim that can affect distributions even when a will exists.
- A surviving spouse may elect to take one-third of the elective estate.
- A surviving spouse can claim a statutory allowance from the estate with a required filing deadline.
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