Probate Family Allowance Requirements in Delaware

At a glance

Requirements one by one

Spouse-only cash allowance

Under 12 Del. C. § 2308, the surviving spouse may demand a specific cash amount up to $7,500. The executor or administrator pays it from the estate as soon as convenient. The section names no child, dependent, or other family claimant and states no need or support-period formula.

The allowance is a debt of the estate. The executor or administrator may sell as much estate property as needed to pay it through the ordinary debt-payment sale process.

Written demand to two recipients

The entitlement does not become effective automatically. The spouse must notify both of the following in writing:

• the Register of Wills for the county where letters were granted; and
• the executor or administrator.

The writing must demand a specific sum not exceeding $7,500 to be set aside from estate proceeds. Section 2308 states no required verification, notarization, delivery method, attachment, hearing, or proof of need.

The shorter of two deadlines

The demand must arrive within the shorter of:

• nine months after the decedent's death; or
• six months after letters testamentary or of administration are granted.

This is an earlier-of rule, not a choice between two full periods. Missing the controlling deadline makes the allowance “of no effect.”

First claim class after administration expenses

Section 2105 first requires payment of administration expenses, fees, and commissions. The surviving spouse's allowance is then class one among claims. It comes before funeral expenses, child-support arrears, last-illness bills, specified wages, state taxes, rent, judgments, recorded obligations, sealed contracts, written contracts, and other demands.

The no-preference-within-class rule does not materially divide this allowance because § 2308 creates a single spouse claim capped at $7,500.

Other inheritance rights and waiver

Section 2308 says the allowance does not affect the spouse's other rights under the will or Delaware intestacy law. Section 907(b) separately confirms that the spouse receives the allowance whether or not the spouse elects to take an elective share.

The small-estate affidavit statute recognizes that the allowance may be paid, provided for, waived, or expired before distribution without letters. Neither that sentence nor § 2308 supplies a special allowance-waiver form.

What trips people up

• Written demand is constitutive. A spouse who does not notify both named recipients within the deadline has no effective allowance under § 2308.
• The deadline is the earlier date. Calculating both dates and choosing the later one defeats the statute's express rule.
• $7,500 is a maximum, not an automatic flat payment. The writing must name the specific amount demanded.
• Priority begins after administration expenses. “First class” means first among the listed claims after expenses, fees, and commissions.
• Children have no parallel allowance in § 2308. The statute is limited to a surviving spouse.

Common questions

Is a court petition required for an undisputed allowance?

Section 2308 requires a written demand to the Register of Wills and the executor or administrator. It does not require a court petition or order as a condition of the ordinary capped claim.

May estate property be sold to pay the allowance?

Yes. Section 2308(c) treats the allowance as an estate debt and authorizes the executor or administrator to sell enough property to pay it through the same process used for other debts.

Does taking an elective share replace the allowance?

No. Section 907(b) expressly preserves the allowance whether or not the spouse elects to take an elective share.

Statutes and sources

• 12 Del. C. § 2308 — spouse eligibility, $7,500 cap, written demand, two recipients, deadline, debt status, and estate sale (accessed August 3, 2026).
• 12 Del. C. § 2105 — administration-expense prerequisite and claim order (accessed August 3, 2026).
• 12 Del. C. § 907(b) — allowance survives the spouse's elective-share choice (accessed August 3, 2026).
• 12 Del. C. § 2306(a)(5) — small-estate recognition of payment, provision, waiver, or expiration (accessed August 3, 2026).