Detailed Answer
This article explains how Delaware law treats the distribution of a decedent’s estate among children when the decedent dies without a will (intestate). It uses a simple hypothetical to illustrate how shares are calculated and points you to Delaware statutory resources.
How intestate succession works in Delaware
When someone dies intestate in Delaware, the estate passes to the decedent’s heirs according to the state’s intestacy rules. These rules are part of Delaware law found in the Delaware Code (Title 12 — Decedents’ Estates). For the full statutes, see the Delaware Code: Del. Code Title 12 and general probate information at the Delaware Courts site: courts.delaware.gov.
Order of succession among children — basic rule
If the decedent is survived by one or more children and no surviving spouse or other claims that take priority, the children are the primary heirs. Under Delaware practice the surviving children inherit the decedent’s estate (subject to creditors and administration costs). If every child survives the decedent, each surviving child receives an equal share of the estate.
What if a child predeceased the decedent?
If a child dies before the decedent but leaves surviving descendants (for example, grandchildren of the decedent), those descendants typically inherit by representation — they take the share their parent would have received had the parent lived. In practical terms, the deceased child’s share is divided among that child’s descendants.
Illustrative hypothetical
Hypothetical facts: Alice dies intestate. She had three children: Ben, Carla, and Dan. Ben is alive. Carla predeceased Alice and left two children (Eve and Frank). Dan is alive.
How the estate is divided: There are three child-shares (one for each of Alice’s children). Ben receives one full share. Dan receives one full share. Carla’s share is split equally between her two children (Eve and Frank), so each receives one-half of Carla’s share. Result: Ben = 1/3; Dan = 1/3; Eve = 1/6; Frank = 1/6.
Other common questions about children and succession
- Adopted children: Adopted children are treated as heirs of the adoptive parent and inherit the same as biological children under Delaware law.
- Stepchildren: Stepchildren do not inherit automatically unless they were legally adopted or otherwise established as heirs by law or court order.
- Paternity and parentage disputes: A putative or biological parent may need to establish parentage (for example, by DNA or court order) before being recognized as an heir.
- Simultaneous death or unclear timing: If a child and the parent die simultaneously or it is unclear who died first, special rules determine which heirs inherit. Those rules can affect whether grandchildren step into a deceased parent’s share.
When children do not inherit
If the decedent has no surviving children and no descendants of children, Delaware’s intestacy rules move to the next class of heirs (parents, siblings, nieces and nephews, and so on). The broad order of succession progresses outward from lineal descendants to parents, then to collateral relatives if there are no descendants.
Administration and practical steps
Estate administration is the process of collecting assets, paying debts, and distributing what remains to heirs. When there is no will, someone (usually an interested heir) petitions the court to be appointed administrator. The administrator then follows Delaware’s probate procedures to distribute the estate according to the intestacy rules.
For practical guidance and forms, check the Delaware Courts website or the Register of Wills in the applicable county (New Castle, Kent, or Sussex) for local probate procedures: courts.delaware.gov.
Helpful Hints
- Obtain multiple certified copies of the death certificate — the administrator will need them to manage bank accounts and title transfers.
- Make a clear list of all potential heirs (children, grandchildren, adopted children) and gather contact information and birth/relationship documentation.
- If a presumed heir’s status is unclear (adoption, paternity), address that issue early; courts often require documented proof of relationship before distribution.
- Consider whether a small-estate affidavit or simplified probate procedure applies — Delaware provides streamlined options for smaller estates.
- Keep detailed records. The administrator must account for assets, expenses, and distributions to show the court and heirs exactly how the estate was handled.
- Engage a probate or estate attorney for complex situations (disputed heirship, business interests, out-of-state property, or significant taxes). An attorney can confirm the correct shares and guide filings in Delaware probate court.
- Use the Delaware Code Title 12 page for the statutory framework: https://delcode.delaware.gov/title12/.
Disclaimer: This article provides general information about estate succession among children under Delaware law and is not legal advice. For advice about a specific situation, contact a qualified attorney licensed in Delaware.