DE risk area
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.
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?
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 this risk area helps you evaluate 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/
Risk 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.