Skip to content
Oakclause

Spousal Elective Share Law in Delaware

In Delaware, a surviving spouse can elect one-third of the elective estate, minus transfers the spouse already received from the decedent, by petition in the Court of Chancery within 6 months after letters are granted.

Last checked . General information, not legal advice.

Delaware at a glance

Elective share
1/3 of the elective estate, minus transfers to the spouse
The elective estate is based on the decedent's federal gross estate, with adjustments.
Deadline to elect
6 months after letters are granted
Filed in the Court of Chancery. The court may extend the time for cause if asked before it expires.
Community property state
No
Not on the IRS list of community property states.

Sources

Last checked

The rules in Delaware

How much can a surviving spouse claim in Delaware if left out of the will?

Elective share in Delaware: 1/3 of the elective estate, minus transfers to the spouse. The elective estate is based on the decedent's federal gross estate, with adjustments.

What is the deadline to claim the elective share in Delaware?

Deadline to elect in Delaware: 6 months after letters are granted. Filed in the Court of Chancery. The court may extend the time for cause if asked before it expires.

Is Delaware a community property state?

No. Community property state in Delaware: no. Not on the IRS list of community property states.

Where do the Delaware spousal elective share laws come from?

The rules above come from 12 Del. C. 901, 12 Del. C. 902 and 12 Del. C. 906. Each source is linked on this page. We last checked them in October 2026.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.