What is the elective share of the surviving spouse in Delaware?

Full question:

My husband died 3 months ago. I am about to approach the court to claim my share as he made a will leaving me with only a meager amount from his estate. According to the Delaware law, how much does a surviving spouse is entitled to receive from her husband’s estate?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Delaware

Answer:

You can claim an elective share, which equals to 1/3 of your husband’s estate. You claim this share to be paid to you either in cash or in kind or partly in both.
Further, once the probate estate is opened you need to quickly claim your elective share so that you don’t cross the limitation period.

For more details have a look at the laws below.
 
12 Del. C. § 901:
Right to elective share
(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of an amount equal to one third of the elective estate, less the amount of all transfers to the surviving spouse by the decedent, under the limitations and conditions hereinafter stated. The elective share may be satisfied in cash or in kind, or partly in each. Assets distributed in satisfaction of the elective share shall be valued at date of distribution.
(b) In determining the elective share under subsection (a) of this section or in the case of the death of a married person not domiciled in this State, the right, if any, of the surviving spouse to take an elective share in real or tangible personal property shall be governed by the law of the situs of such property.
 
12 Del. C. § 906 :
Proceeding for elective share; time limit
(a) The surviving spouse may elect to take an elective share in the elective estate by filing in the Court of Chancery and mailing or delivering to the personal representative a petition for the elective share within 6 months after the grant of letters testamentary or of administration. The Court, upon petition, may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.
 
(b) The surviving spouse shall give at least 10 days' notice by certified mail of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the elective estate whose interests will be adversely affected by the taking of the elective share.
 
(c) The surviving spouse may withdraw demand for an elective share at any time before entry of a final determination by the Court of Chancery.
 
(d) After notice and hearing, the Court of Chancery shall determine the amount of the elective share and shall enter a judgment and order apportioning the liability for the amount of the elective share among the recipients of the contributing estate and directing payment of such liability as provided in § 908(a) of this title. If it appears that a fund or property included in the elective estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the property or who has possession thereof, whether as trustee or otherwise.
 
(e) The order or judgment of the Court of Chancery may be enforced as necessary in suit for contribution or payment in other courts of this State or other jurisdictions.
 
(f) The Court of Chancery on petition of a surviving spouse may restrain any person from making a payment or transfer of property which constitutes part of the contributing estate, either before or after a petition for an elective share is filed.
 
(g) No transferee of, or holder of a lien against, real property comprising part of the contributing estate shall be liable to a surviving spouse if the transferee or lienholder has given bona fide consideration to the recipient of such real property from the decedent unless a certified copy of the judgment, order or decree of the Court of Chancery providing to the contrary with respect to such real property has been recorded in the office for the recording of deeds in the county where the real property is located prior to the recordation of the deed, mortgage or other instrument transferring, or creating the lien against, such real property. The recording of any such judgment, order or decree shall be indexed in the grantor's index under the names of the decedent and the recipient of such real property from the decedent.