Delaware Elective Share and Spousal Allowance in Probate

Delaware gives surviving spouses two distinct legal protections that operate independently of what a will says: the elective share and the statutory spousal allowance. Both require specific action to claim. The allowance, in particular, has a deadline that many surviving spouses miss entirely — and once missed, it cannot be recovered.

The Delaware Elective Share

The elective share is a surviving spouse's right to claim a portion of the decedent's estate regardless of what the will provides. In Delaware, the elective share equals one-third of the elective estate.

This protection exists to prevent a spouse from being disinherited. If a will leaves everything to the decedent's children from a previous marriage, or to a charity, the surviving spouse can reject the will's provisions and instead elect to take one-third of the elective estate.

What is the "elective estate"? Delaware's elective estate is broader than just the probate estate. It can include certain assets that were transferred out of the estate before death — such as revocable trusts, assets with beneficiary designations, and transfers made with retained interests. The specific calculation follows the rules in Title 12 of the Delaware Code, and the definition of what's included is complex enough that an attorney is typically needed if you're actually exercising this right.

How to exercise the elective share: The surviving spouse must file a formal election with the Register of Wills within a specific statutory window. Failing to timely elect means accepting whatever the will (or intestate succession) provides. If you're a surviving spouse who was left less than you expected and you believe the elective share might exceed your bequest, consult a Delaware probate attorney promptly after the estate is opened.

The $7,500 Statutory Spousal Allowance

Separate from the elective share, Delaware gives every surviving spouse the right to a $7,500 cash allowance drawn from the estate's assets before most other creditors are paid.

This allowance ranks alongside administrative costs — ahead of unsecured credit card debt, medical bills, personal loans, and even some tax claims. In an insolvent estate where creditors are scrambling for every dollar, the $7,500 allowance can be the difference between the surviving spouse receiving something and receiving nothing.

The critical catch: This allowance is not automatic. It is entirely forfeited if the surviving spouse fails to file a formal, written demand with the Register of Wills within:

• 9 months of the date of death, or
• 6 months from the date Letters were granted,

whichever period is shorter.

A surviving spouse who is also serving as executor is at particular risk of missing this deadline. It's easy to assume you can simply retain $7,500 from the estate account during final distribution — you cannot. The written demand must be filed with the Register's office within the statutory window. No demand filed on time means the right is permanently gone.

Why the Allowance Matters Most in Insolvent Estates

In a solvent estate with substantial assets, $7,500 may feel like a footnote. But the allowance's legal priority is what makes it significant in difficult situations.

Example: The estate has $15,000 in assets and $40,000 in debts. Without the spousal allowance, creditors take everything and the surviving spouse receives nothing from the estate. With a timely-filed demand, the first $7,500 goes to the surviving spouse before most creditors see a dollar.

If you're a surviving spouse and you're uncertain whether the estate is solvent, file the demand anyway. The cost is zero; the potential benefit is $7,500.

What Surviving Spouses Should Do Immediately

Given the tight deadlines, surviving spouses should take these steps early in the probate process:

1. Confirm when Letters were granted. The six-month-from-Letters window runs from the date the Register of Wills issues the Letters Testamentary or Administration — not the date you were appointed.

2. File the written demand with the Register of Wills promptly. Don't wait until you know the estate's financial picture is clear. The demand is a protective filing; it doesn't obligate you to take the allowance if the estate is solvent and you choose not to.

3. Separately evaluate the elective share. If the will leaves you less than one-third of the estate's value, consult a Delaware attorney about whether the elective share gives you more.

4. Don't confuse the spousal allowance with the homestead allowance or exempt property. Delaware's statutes provide several layers of spousal protection. The $7,500 cash allowance is one specific right. Other exemptions and allowances may also apply and may have their own deadlines.

How This Intersects With Formal Probate

Both the elective share and the spousal allowance exist within the formal probate process. They don't apply to assets that transfer outside of probate (joint tenancy, beneficiary-designated accounts, trust assets). If the decedent structured their estate primarily through non-probate transfers, these protections may be limited or subject to different rules.

The Delaware Probate Process Guide covers the spousal allowance deadline in the administration timeline, includes a demand letter template for the Register of Wills filing, and walks through which spousal protections apply at each stage of the process.

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