Delaware Inheritance Laws: Wills, Probate, and Intestacy

Delaware inheritance laws impose no state inheritance tax and no state estate tax, so heirs typically receive their share without any state-level tax. What an heir actually gets depends on whether the person who died left a will, created a trust, or named beneficiaries directly on accounts and deeds. If none of those exist, Delaware’s intestate succession statute controls, starting with the surviving spouse and children.¹ Federal estate tax only reaches very large estates: for 2026 the exemption is $15 million per individual.²

Who Inherits When There Is No Will

Delaware’s intestate statute distributes an estate according to who survived the decedent. The split turns on whether there is a spouse, whether there are children, and whether those children are also the spouse’s children.¹

Spouse and Shared Children

If every one of the decedent’s children is also a child of the surviving spouse, the spouse takes the first $50,000 of the personal estate and half of what remains, plus a life estate in any real property. The children divide the rest equally.¹

Spouse With Children From Another Relationship

If any child of the decedent is not also the spouse’s child, the spouse’s share shrinks: half of the personal estate and a life estate in real property, with no $50,000 preference. All of the decedent’s children then split the remaining personal estate and hold the remainder interest in the real property.¹

No Spouse, No Children, or More Distant Relatives

With no spouse, the children (or their descendants, per stirpes) take everything. With no spouse and no descendants, the estate goes to the decedent’s parents equally, then to siblings and their descendants, and then to more distant relatives. Only when no living relative can be found does the estate pass to the state.¹

One quirk is worth flagging. A surviving spouse’s intestate interest in real estate is a life estate, not outright ownership. The spouse can live on or use the property for life but cannot sell it free and clear without the consent of the remainder beneficiaries. That is one of the strongest practical reasons to have a will.

What a Delaware Will Does and Requires

A will lets the testator name specific beneficiaries, including people and charities who would not inherit under the intestate rules, appoint an executor, and nominate guardians for minor children. To be valid in Delaware, the will must be in writing, signed by the testator (or by someone signing on the testator’s behalf in the testator’s presence and at the testator’s direction), and witnessed by at least two credible witnesses who sign in the testator’s presence.³

Delaware does not require witnesses to be disinterested, so a beneficiary can serve as a witness without voiding the document.³ Using disinterested witnesses is still the safer practice because an interested witness invites scrutiny if the will is later challenged. A will that fails the statutory requirements is void, and the estate falls back to intestate succession.

The Spouse’s Elective Share

Delaware will not let a testator fully disinherit a spouse. Even when the will leaves nothing (or very little) to the surviving spouse, that spouse may claim an elective share equal to one-third of the “elective estate,” minus any transfers the decedent already made to the spouse.⁴

The share can be paid in cash, in kind, or a mix, with distributed property valued as of the date of distribution rather than the date of death. If the decedent was not domiciled in Delaware but owned Delaware real estate, Delaware law governs the elective share in that real estate.⁴ The elective share is a floor. A spouse who already receives more than one-third under the will keeps the larger amount; the election only matters when the will gives less.

Assets That Skip Probate

A will controls only the property that passes through probate. Several categories of assets transfer automatically at death and ignore the will entirely:

Jointly owned accounts and property held with a right of survivorship pass directly to the surviving co-owner.
Life insurance, retirement accounts, and payable-on-death bank accounts pass to the named beneficiary.
Real estate can now pass by a transfer-on-death deed. Under the Transfer on Death Act (HB 147, effective June 30, 2025), a Delaware owner can designate a beneficiary who takes the property at death outside probate. The owner keeps full control during life and can sell, change, or revoke the deed at any time.⁵

Assets held in a revocable or irrevocable trust also pass outside probate, under the terms of the trust instrument. Because beneficiary designations and joint titles override the will, an outdated designation (naming an ex-spouse, for example) controls regardless of what the will says. Keeping those designations current matters as much as keeping the will current.

Taxes on a Delaware Inheritance

Delaware repealed its inheritance tax effective January 1, 1999, and repealed its estate tax for deaths after December 31, 2017.⁶ Heirs face no state tax on what they inherit, no matter the size of the estate or their relationship to the decedent.

Federal estate tax still applies to very large estates. For 2026, the basic exclusion is $15 million per individual, and married couples can combine their exemptions through portability for up to $30 million. Only the value above the threshold is taxed, at graduated rates topping out at 40%.²⁷ The $15 million exemption was set and made permanent by the One Big Beautiful Bill Act, which eliminated a scheduled drop to roughly $7 million.

Receiving an inheritance is not itself taxable income to the heir, so no Delaware or federal income tax falls on the inheritance as such. Income the estate earns during administration (interest, dividends, rental income) is taxable, and the executor files an estate income tax return covering the period from the date of death through final distribution.

How Probate Works in Delaware

Probate runs through the Register of Wills in the county where the decedent lived. It begins when someone files the original will, if there is one, and a certified death certificate. The Register issues “short certificates,” which give the personal representative legal authority to act for the estate. If no next of kin steps forward to administer the estate within 60 days of death, the Register may appoint any interested person.⁸

From there, the statute sets the pace:

Within three months of opening the estate, the personal representative files an inventory listing and appraising all assets, including real estate.
Creditors have eight months from the date of death to present claims, regardless of whether formal notice has been published.⁹
Within one year, the personal representative files a formal accounting showing assets received, debts and expenses paid, and proposed distributions.

A typical estate wraps in roughly a year. Closing costs paid to the Register of Wills run 1.25% of the net personal estate, plus modest recording fees.⁸ The Court of Chancery only becomes involved when a dispute arises; uncontested estates move through the Register of Wills without court appearances.

Small Estate Affidavit

Not every estate needs formal probate. If the decedent’s personal property is worth $30,000 or less and the decedent did not own Delaware real estate solely or as a tenant in common, a qualifying family member or named executor can collect and distribute the assets using a small estate affidavit.¹⁰ The affiant must swear under oath that at least 30 days have passed since death, no probate petition is pending or granted, the $30,000 cap is met (excluding jointly owned property), all known debts have been paid or provided for, and the surviving spouse’s allowance has been paid, provided for, or waived. The affidavit works for bank accounts, vehicle titles, and other personal property, and is far faster and cheaper than full probate.

How Debts Get Paid Before Heirs

Debts survive the decedent. The personal representative must pay valid claims before distributing anything to beneficiaries, and claimants have eight months from the date of death to file.⁹ When the estate cannot cover everything, Delaware sets a strict priority. After administration expenses and executor commissions, claims are paid in this order: surviving spouse’s allowance; funeral expenses; child support arrears owed at death; medical bills from the last illness; up to one year of wages owed to household or farm employees; state taxes; up to one year of rent; judgments; mortgages and other recorded obligations; contracts under seal; other written contracts; and all remaining claims.¹¹ Within a single class, no claim outranks another; if money runs out mid-class, the remaining claimants in that class share proportionally and lower classes get nothing. Heirs take what is left.

Contesting a Will

Delaware courts begin with a strong presumption that the testator had capacity and that the will reflects the testator’s wishes. The challenger carries the burden of proving otherwise. The common grounds are lack of testamentary capacity (the testator did not understand the nature of the property, the natural heirs, or what the will did), undue influence (someone in a position of trust pressured or manipulated the testator), and improper execution (the signing or witnessing requirements were not met). Where will or trust language is genuinely ambiguous, the Court of Chancery looks to the testator’s or grantor’s overall intent and may consider evidence beyond the document itself.¹² Most contests fail; the bar for overturning a properly executed will is deliberately high.

Turning Down an Inheritance

No one is forced to accept an inheritance. Under Delaware’s disclaimer statute, any person may disclaim all or part of an interest in property received by will, intestate succession, or trust, and a spendthrift or similar restriction in a trust instrument does not block the disclaimer. A disclaimer can serve estate-tax planning (letting the assets pass directly to the next person in line, often the disclaimant’s children) or protect inherited property from the disclaimant’s creditors. Once filed, a disclaimer is irrevocable, and the disclaimed property passes as though the disclaimant died before the decedent.¹³

1
Delaware Code Online. Delaware Code Title 12 – Chapter 5 Intestate Succession
2
Internal Revenue Service. What’s New — Estate and Gift Tax
3
Delaware Code Online. Delaware Code Title 12 – Chapter 2 Subchapter I
4
Delaware Code Online. Delaware Code Title 12 – Chapter 9 Elective Share
5
New Castle County, DE – Official Website. Transfer on Death Deeds
6
Delaware Department of Finance. Delaware Division of Revenue – Estate Tax
7
Office of the Law Revision Counsel. 26 USC 2001 – Imposition and Rate of Tax
8
Sussex County, DE. Steps in Probating an Estate
9
Delaware Code Online. Delaware Code Title 12 – Chapter 21
10
Delaware Code Online. Delaware Code Title 12 – Chapter 23 Subchapter I
11
Justia Law. Delaware Code Title 12 – Section 2105
12
Delaware Corporate Law. Litigation in the Delaware Court of Chancery and the Delaware Supreme Court
13
Delaware Code Online. Delaware Code Title 12 – Chapter 6 Disclaimer