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.
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:
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.
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:
If you die with:
here's what happens:
|children but no spouse||children inherit everything|
|spouse but no descendants or parents||spouse inherits everything|
|spouse and descendants from you and that spouse||spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance, plus the right to use any intestate real estate for life
your descendants inherit everything else
|spouse and at least one descendant from you and someone other than that spouse||spouse inherits 1/2 of your intestate property, plus the right to use any intestate real estate for life
descendants inherit everything else
|spouse and parents||spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance, plus the right to use any intestate real estate for life
parents inherit remaining intestate property
|parents but no spouse or descendants||parents inherit everything|
|siblings but no spouse, descendants, or parents||siblings inherit everything|
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.
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.
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.
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.
Here are a few other things to know about Delaware intestacy laws.
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.