Dying Without a Will in Delaware

By Kay Lee

You may have preferences as to which family member or friend receives your property after your death and those wishes are typically expressed through a will. However, if you die without a will, called dying intestate, state law will decide how your property is distributed. State law also dictates the process by which your property is distributed, which is known as probate. Just like every other state, Delaware has intestacy and probate laws in case one of its residents dies without a will.

Testacy vs. Intestacy

If you want to control how your property will be passed after your death, you want to create a will. Dying with a will is called dying testate; as the maker of the will, you would be called the testator. In Delaware, nearly anyone may create a will, provided they meet certain state requirements. Delaware law requires the person creating a will to be at least 18 years old and of sound mind. The will must be a written document signed by the person making the will and there must be two adult witnesses to the maker’s signature on the will. If all of these requirements are met, the will is considered valid under Delaware law. Dying without a will in Delaware means you die intestate. In that case, Delaware state law decides how your property will be distributed to your relatives and heirs. This order of distribution is called intestate succession.

Intestate Succession if Married

The Delaware Code provides that if a married person dies without a will, and if the decedent does not have any living children or parents at the time of his death, the spouse will receive the decedent’s entire estate. In Delaware, if the decedent has surviving parents but no children, a portion of the decedent’s estate will be distributed to the parents and the rest to the decedent’s spouse. If the decedent has living children who are also children of the surviving spouse, the children will receive a portion of the decedent’s estate and the surviving spouse will receive the remaining balance. If there are children from a different relationship, all children receive a portion of the decedent’s estate and this is the situation in which the surviving spouse receives the smallest amount under Delaware law.

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Intestate Succession if Unmarried

If the decedent is not married, the decedent’s property will pass first to his children. The children will receive their shares per stirpes. Per stirpes means that each branch of heirs will receive an equal share of the estate.This means that in the event one of the children died before the decedent but has children that are still alive, those children will take the share of their deceased parent. If the decedent did not have children, the decedent’s surviving parents would receive equal shares.

Intestate Succession Beyond Immediate Family

If the decedent is not married and does not have any children or parents alive at the time of his death, the decedent’s estate will be distributed to the decedent’s siblings per stirpes, so the children of any siblings that did not outlive the decedent will receive their parent’s share. If the decedent did not have any siblings, the decedent’s estate will be distributed to his next of kin.

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