Intestate Succession in Delaware

If you die without a will in Delaware, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Delaware.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Delaware.

Who Gets What in Delaware?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

The Spouse's Share in Delaware

In Delaware, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:

If you die with parents but no descendants. Your surviving spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance, and the right to use any intestate real estate for life.

Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Because Gerry has significant additional property that would have passed under a will, Joe inherits $50,000 worth of that property plus half of everything else. The remaining half of Gerry's intestate property goes to Gerry's father.

If you die with children or other descendants from you and the surviving spouse. Your surviving spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance, and the right to use any intestate real estate for life.

Example: Bill is married to Karen, and they have two grown children. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. Bill and Karen live in a rented condominium, but Bill also owns a small house in another city from which the couple receives rental income. Finally, Bill has a good deal of other property that would have passed under a will if he had made one. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Karen also inherits the first $50,000 worth of Bill's property, plus half of everything else, and she has the right to use and/or receive rental income from Bill's house for as long as she lives. The remaining half of Bill's property goes to the couple's children, who will also inherit the house after Karen's death.

If you die with at least one descendant who is not the descendant of your surviving spouse. Your spouse inherits 1/2 of your intestate property, plus the right to use any intestate real estate for life.

Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $100,000 worth of Barrett's property. Barrett's daughter inherits the remaining $100,000 share of Barrett's property.

Children's Shares in Delaware

If you die without a will in Delaware, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, and whether they are also your spouse's children. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of Delaware must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. Del. Code Ann. Tit. 12, § 508.
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance.
• Posthumous children. Children conceived by you but not born before your death will receive a share. Del. Code Ann. Tit. 12, § 505.
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if (1) you married the mother after their birth, (2) you acknowledge paternity in writing, (3) you participated in a marriage ceremony that turned out to be void, or (4) your paternity is established by a court before or after your death. Del. Code Ann. Tit. 12, § 508, Del. Code Ann. Tit. 13, § 1301.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share.

If you want to read the law, Delaware Code, Title 12, Chapter 5 § § 505 and 508 cover parent-child relationships.

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins.

Other Delaware Intestate Succession Rules

Here are a few other things to know about Delaware intestacy laws.

• Survivorship period. To inherit under Delaware's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. Del. Code Ann. Tit. 12, § 504.
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. Del. Code Ann. Tit. 12, § 506.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive. Del. Code Ann. Tit. 12, § 505.
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. Del. Code Ann. Tit. 12, § 507.
• Advancements. If you gave someone property during your lifetime, the value of this gift is subtracted from your relative's share only if you wrote this down at the time of giving away the property or if your relative admitted this in writing. Del. Code Ann. Tit. 12, § 509.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find Delaware's intestate succession law here: Delaware Code, Title 12, Chapter 5.

For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.