Delaware Inheritance Laws: Wills, Probate, and Taxes

Delaware inheritance laws impose no state inheritance tax and no state estate tax, so most heirs receive their share without any state-level tax bite. What each person actually inherits depends on whether the deceased left a valid will, funded a trust, named beneficiaries on specific accounts, or did none of those things. When there’s no will, Delaware’s intestate succession statute decides who gets what. Federal estate tax only reaches very large estates, with a $15 million per-person exemption in 2026.¹

Who Inherits When There’s No Will

If a Delaware resident dies without a valid will, the state’s intestate succession statute controls the distribution. The estate passes to the closest surviving relatives, and the exact split turns on who those relatives are.²

Spouse and Children Together

If every child of the deceased is also a child of the surviving spouse, the spouse receives the first $50,000 of the personal estate plus half of what remains, along with a life estate in any real property. The children divide the rest equally.²

If any child came from a different relationship, the spouse’s share shrinks. The spouse receives half of the personal estate and a life estate in the real property, with no $50,000 preference. All the children then split the remaining personal estate and hold the remainder interest in the real property.²

No Spouse, No Children, or More Distant Family

With no surviving spouse, the entire estate goes to the children, or to their descendants per stirpes. With no children either, the estate passes to the decedent’s parents equally, then to siblings and their descendants, and then outward to more distant relatives. Only when no living relative can be found does the property escheat to the state.²

The real-property distinction matters. A surviving spouse’s intestate share of real estate is a life estate, meaning the spouse can live on or use the land for life but cannot sell it outright without the remainder beneficiaries’ consent. That single mechanic is one of the strongest reasons to write a will.

What Makes a Delaware Will Valid

A Delaware will must be in writing, signed by the testator (or by someone else signing at the testator’s direction and in the testator’s presence), and witnessed by at least two credible witnesses who sign in the testator’s presence.³

Delaware does not require witnesses to be disinterested. A will isn’t invalidated just because a witness is also a beneficiary.³ Even so, using disinterested witnesses is prudent, because interested witnesses invite scrutiny if the will is later challenged.

A valid will lets you name any beneficiaries you choose, including friends, charities, or relatives who wouldn’t otherwise inherit under the intestate rules. You can appoint an executor and name guardians for minor children. A document that fails the statutory requirements is void, and the estate falls back to intestate succession.

Assets That Skip Probate

Not everything a person owns passes through the will or the intestate rules. Several categories transfer automatically at death:

Joint accounts and property held with right of survivorship pass to the surviving co-owner.
Life insurance policies, retirement accounts, and payable-on-death bank accounts pass to the named beneficiary.
Transfer-on-death deeds allow real estate to pass directly to a named beneficiary. Under Delaware’s Transfer on Death Act (HB 147, effective June 30, 2025), an owner can designate who receives the property at death, while keeping full control (including the right to sell, change, or revoke) during life.⁴

These transfers happen quickly and privately, but they create a common trap. An outdated beneficiary designation (an ex-spouse still listed on a retirement account, for instance) overrides the will. Keeping those designations current is as important as keeping the will itself current.

Assets held in a revocable or irrevocable trust also bypass probate. A trust transfers assets to a trustee who manages them for named beneficiaries under terms set by the grantor. Revocable trusts can be changed or canceled during the grantor’s lifetime; irrevocable trusts generally cannot, but they can offer asset protection and tax advantages.

The Spouse Cannot Be Fully Disinherited

Delaware law places a floor under a surviving spouse’s share. Even when a will leaves everything to someone else, the spouse can claim an elective share equal to one-third of the “elective estate,” reduced by transfers the decedent already made to the spouse.⁵

The share can be paid in cash, in kind, or a mix. Assets distributed to satisfy it are valued at the date of distribution, not the date of death. For a married person who wasn’t domiciled in Delaware, the elective-share right in Delaware real estate is still governed by Delaware law as the location of the property.⁵

The elective share is a floor, not a ceiling. If the will already gives the spouse more than one-third, the spouse keeps the larger amount. The election only matters when the will (or non-probate transfers to the spouse) would deliver less than that threshold.

Taxes on a Delaware Inheritance

State Taxes

Delaware repealed its inheritance tax effective January 1, 1999, and repealed its estate tax for deaths after December 31, 2017.⁶ Delaware heirs owe no state-level tax on what they inherit, whatever the estate’s size or their relationship to the deceased.

Federal Estate Tax

Federal estate tax still applies to the largest estates. For 2026, the basic exclusion is $15 million per individual, or $30 million for a married couple using portability. Only the value above that threshold is taxed, at graduated rates topping out at 40%.¹⁷ The $15 million figure comes from the One Big Beautiful Bill Act, which raised the exemption and made it permanent, canceling a scheduled drop to roughly $7 million.

Income Tax on Inherited Assets

An inheritance itself isn’t income to the beneficiary, so receiving one doesn’t trigger Delaware or federal income tax. Income the estate earns during administration (interest, dividends, rent) is taxable, and the executor files an estate income tax return covering the period between the date of death and final distribution.

How Probate Works

Probate in Delaware goes through the Register of Wills in the county where the decedent lived. The process opens when someone files the original will (if one exists) with a certified death certificate. The Register issues “short certificates” that give the personal representative legal authority to act for the estate.⁸

From there, statutory deadlines drive the timeline:

Within three months, the personal representative files an inventory listing and appraising all estate assets, including real estate.
Creditors have eight months from the date of death to present claims, whether or not formal notice has been published.⁹
Within one year, the personal representative files a formal accounting showing what the estate received, what it paid, and how it proposes to distribute the balance.

Full probate typically takes about a year. Closing costs paid to the Register of Wills come to 1.25% of the net personal estate, plus modest recording fees.⁸ Uncontested estates move through the Register of Wills without any court appearance; the Court of Chancery gets involved only when disputes arise.

The Small Estate Shortcut

Some estates skip formal probate entirely. If the decedent’s personal property is worth $30,000 or less and they didn’t own Delaware real estate solely in their own name, a qualifying family member or named executor can use a small estate affidavit instead.¹⁰

The person filing must swear that at least 30 days have passed since the death, no probate petition is pending or has been granted, the personal estate (excluding jointly owned property) doesn’t exceed $30,000, the decedent didn’t own Delaware real estate solely or as a tenant in common, all known debts have been paid or provided for, and the surviving spouse’s allowance has been paid, provided for, or waived. With that affidavit, the filer can collect bank accounts, transfer vehicle titles, and gather other personal property without opening a formal estate. It is faster and cheaper than full probate.

Debts Get Paid Before Heirs

Debts don’t disappear at death. The personal representative pays valid creditor claims before distributing anything to beneficiaries, and creditors have that eight-month window from the date of death to file.⁹

When the estate can’t cover everything, Delaware sets a strict priority order. After administration expenses and executor commissions, claims are paid in this sequence: the surviving spouse’s allowance; funeral expenses; child support arrears owed at death; medical bills from the last illness; wages owed to household or farm employees (up to one year); state taxes; rent (up to one year); judgments against the decedent; mortgages and other recorded obligations; contracts under seal; other written contracts; and all remaining claims.¹¹

Within any single class, no claim outranks another. If money runs out partway through a class, the remaining claimants in that class share proportionally and lower classes get nothing. Heirs inherit only what survives that process.

Contesting a Will

Delaware courts begin with a strong presumption that the testator had capacity and that the will reflects genuine intent. Anyone challenging a will carries the burden of proving otherwise with substantial evidence. Most contests fail, and the process is expensive and slow.

The recognized grounds are narrow:

Lack of testamentary capacity. The challenger must show the testator couldn’t understand the nature of their property, who their natural heirs were, or what the will did.
Undue influence. If the challenger shows the testator had weakened intellect, the will was drafted by someone in a confidential relationship with the testator, and that drafter received a substantial benefit, the burden shifts to the will’s proponent to prove the will was legitimate.
Improper execution. The will didn’t meet the statutory signing and witnessing requirements.

Ambiguous wording is a separate category. When a provision can reasonably be read more than one way, the Court of Chancery looks to the testator’s or grantor’s overall intent, sometimes considering evidence beyond the document itself.¹² Courts don’t second-guess a testator’s choices simply because the outcome feels unfair.

Refusing an Inheritance

You aren’t required to accept what someone leaves you. Delaware’s disclaimer statute lets any person disclaim all or part of an interest in property, whether it comes through a will, intestate succession, or a trust.¹³

Disclaiming can serve tax planning, letting property skip a generation and pass directly to the next taker (often the disclaimant’s children). It can also shield inherited assets from a beneficiary’s own creditors. Once filed, a disclaimer is irrevocable, and the disclaimed property passes as if the disclaimant had died before the decedent. Spendthrift language and other restrictions in a trust don’t block the right to disclaim.¹³

1
Internal Revenue Service. What’s New — Estate and Gift Tax
2
Delaware Code Online. Delaware Code Title 12 – Chapter 5 Intestate Succession
3
Delaware Code Online. Delaware Code Title 12 – Chapter 2 Subchapter I
4
New Castle County, DE – Official Website. Transfer on Death Deeds
5
Delaware Code Online. Delaware Code Title 12 – Chapter 9 Elective Share
6
Delaware Department of Finance. Delaware Division of Revenue – Estate Tax
7
Office of the Law Revision Counsel. 26 USC 2001 – Imposition and Rate of Tax
8
Sussex County, DE. Steps in Probating an Estate
9
Delaware Code Online. Delaware Code Title 12 – Chapter 21
10
Delaware Code Online. Delaware Code Title 12 – Chapter 23 Subchapter I
11
Justia Law. Delaware Code Title 12 – Section 2105
12
Delaware Corporate Law. Litigation in the Delaware Court of Chancery and the Delaware Supreme Court
13
Delaware Code Online. Delaware Code Title 12 – Chapter 6 Disclaimer