Disclaimer: This article is for general information and does not constitute legal advice. For advice, consult a licensed attorney.
Detailed Answer
Intestate Succession Under Delaware Law
When someone dies without a will in Delaware, the estate distributes according to 12 Del. C. § 301. A surviving spouse typically receives a fee simple interest in the estate: 100% if there are no descendants or only descendants of that spouse; one-half if there are descendants not from the spouse; and other shares if there are no surviving descendants or parents. Heirs inherit full ownership immediately, not just a life estate.
Life Estate vs. Fee Simple Intestate Share
Some states allow a surviving spouse to claim a life estate (dower or curtesy) in real property. Delaware abolished those common‐law rights. Under § 301, a spouse’s intestate share vests in fee simple. The law provides no option to convert that share into a life estate.
Homestead and Family Allowances
Delaware law offers limited allowances regardless of testacy: a homestead allowance up to $15,000 in the principal residence (12 Del. C. § 1102), an exempt personal property allowance up to $5,000 (§ 1103), and a family allowance for support during administration (§ 1104). These allowances do not create life estates.
Elective Share Under a Will
If the decedent left a will, a surviving spouse may choose an elective share of the augmented estate under 12 Del. C. § 5033. This protects against inadequate provision in a will but results in a cash or property lump sum, not a life estate.
No Election of Life Estate
In Delaware, heirs cannot elect to take a life estate instead of their intestate share. The statutes set fee simple intestate shares, allowances, and elective share rights only. No provision allows conversion of an intestate interest into a life estate.
Helpful Hints
- Review 12 Del. C. § 301 to understand your intestate share.
- File for homestead, exempt property, and family allowances promptly during probate.
- Distinguish between intestate shares and elective share under a will—only the latter applies a lump-sum claim.
- Disclaimers shift your share to next heirs; they do not create life estates.
- Consult a Delaware estate planning attorney for guidance on your rights and options.