Spousal Elective Share Requirements in Delaware

At a glance

Requirements one by one

The amount is one-third minus spouse transfers

Section 901 starts with one-third of the elective estate and then subtracts all transfers from the decedent to the surviving spouse. Marriage length does not change the fraction and the statute supplies no fixed supplemental floor.

For example, if the elective estate is $900,000 and the § 903 transfers to the spouse are worth $200,000, the statutory calculation is $300,000 minus $200,000, leaving a $100,000 elective-share amount. The amount may be satisfied in cash, property, or both, and satisfaction property is valued when distributed.

The elective estate uses the federal gross-estate base

The base is not limited to the probate estate. Section 902 uses the decedent's federal gross estate even when no federal estate-tax return otherwise needs to be filed. It subtracts the deductions allowed by Internal Revenue Code §§ 2053 and 2054 and modifies qualifying property held only by the spouses as tenants by the entirety or joint tenants with survivorship so that one-half is included.

Once a timely election petition is filed, the personal representative must prepare a Form 706 even if federal law would not otherwise require one. The copy deadline is the latest of the extended federal due date, 15 months after death when no return is required, or three months after the timely petition.

Benefits already passing to the spouse reduce the amount

Section 903's credit list is broad. It includes probate gifts, § 2036 lifetime transfers, one-half of qualifying spouse-only joint property, beneficial interests in trusts created by the decedent, appointed property, insurance benefits included in the federal gross estate, annuity and retirement benefits, other listed deferred payments, and community-property rights. Social Security and similar individual government-survivor benefits are excluded from that retirement-benefit credit.

Most disclaimers or renunciations do not erase the credit: the chapter generally treats the disclaimed benefit as still transferred to the spouse for the elective-share calculation. Section 903 states a narrower exception for a disclaimed primary-beneficiary interest in a nonmarital-deduction trust whose future payments cannot be valued at death.

Filing runs from the grant of letters

The spouse must file the petition in the Court of Chancery and mail or deliver it to the personal representative within six months after letters testamentary or administration are granted. A cause-based extension is available only if the spouse petitions before the unextended or already extended deadline expires. The spouse may withdraw before final determination.

At least ten days before the hearing, the spouse must send certified-mail notice of its time and place to interested persons and elective-estate distributees or recipients whose interests would be adversely affected. After notice and hearing, Chancery determines the amount and apportions liability.

A protected person's election needs a support finding

The spouse ordinarily must exercise the right during life. If the spouse is a minor or another protected person with a guardian, trustee, or protective order, the court handling the protective proceeding must authorize the election after finding it necessary to provide adequate support during the spouse's probable life expectancy.

If the spouse dies after exercising the right, the spouse's personal representative succeeds to that already-exercised claim. Section 904 does not authorize a personal representative to start a new election after the spouse's death.

The waiver rule requires a signed writing

Section 905 permits a full or partial waiver before or after marriage through a written contract, agreement, or waiver signed by the waiving party. The section states no witness, acknowledgment, notarization, or separate disclosure rule.

Unless the instrument says otherwise, an “all rights” waiver or a complete property settlement made after or in anticipation of separation or divorce waives the elective share and renounces intestate benefits and benefits under a will signed before the agreement.

The collection base is narrower than the calculation base

Section 908 apportions liability among recipients of the decedent's “contributing estate” in proportion to the property each received. A recipient may pay the assessed amount or give up the property and end personal liability. For a life estate or other temporary interest, the liability is charged to the property's corpus rather than split between the temporary and remainder owners.

The contributing estate is deliberately narrower than the elective estate. It excludes jointly owned survivorship property, insurance payable to someone other than the estate, and property held in trust. Chancery may nevertheless determine liability for contributing-estate property outside the personal representative's possession and may restrain a payment or transfer.

Election does not automatically cancel other benefits

Delaware does not treat the election itself as a renunciation of will, trust, or intestacy benefits. The spouse must separately disclaim under Chapter 6 or expressly renounce a benefit in the elective-share petition. A renounced benefit then passes as though the spouse predeceased the decedent, but it generally still counts as a § 903 transfer that reduces the elective-share amount.

The surviving spouse's allowance remains available whether or not the spouse elects.

What trips people up

• The spouse's benefits are credits, not necessarily forfeitures. Will, trust, and intestacy benefits continue unless separately renounced, but they generally reduce the elective-share amount.
• The six-month clock starts with letters. It does not run from death or admission of the will alone.
• An extension request must be early. Cause is not enough after the current election period has already expired.
• Calculation and collection use different estates. Trusts, nonestate insurance, and survivorship property can affect the federal-gross-estate calculation or spouse credits but are excluded from § 908's contributing estate.

Common questions

What if no federal estate-tax return is otherwise due? Section 902 still defines the elective estate by reference to the federal gross estate and requires the personal representative to prepare a Form 706 after a timely petition.

Can Chancery stop property from being transferred while the claim is pending? Yes. Section 906(f) permits a restraining order for contributing- estate property before or after the elective-share petition is filed.

Does a later buyer of contributing-estate realty always remain liable? No. Section 906(g) protects a buyer or lienholder who gave bona fide consideration unless the contrary Chancery judgment, order, or decree was recorded in the county deed office before the later instrument.

Statutes and sources

• 12 Del. C. § 901 — one-third calculation, spouse-transfer subtraction, cash or in-kind satisfaction, distribution-date value, and situs rule. Official Delaware Code (accessed 2026-08-02).
• 12 Del. C. § 902 — federal-gross-estate base, deductions, joint-property adjustment, and Form 706 preparation and delivery. Official Delaware Code (accessed 2026-08-02).
• 12 Del. C. § 903 — transfers credited to the spouse, valuation, and disclaimer treatment. Official Delaware Code (accessed 2026-08-02).
• 12 Del. C. §§ 904 and 905 — living-spouse and protected-person rules and written waiver. Official § 904 and official § 905 (accessed 2026-08-02).
• 12 Del. C. § 906 — Chancery filing, delivery, deadline, extension, notice, hearing, withdrawal, enforcement, restraint, and realty protection. Official Delaware Code (accessed 2026-08-02).
• 12 Del. C. § 907 — retained benefits, express renunciation, transfer credits, and spouse allowance. Official Delaware Code (accessed 2026-08-02).
• 12 Del. C. § 908 — contributing estate, proportional liability, exclusions, and recipient surrender option. Official Delaware Code (accessed 2026-08-02).