Delaware Intestate Succession: Who Inherits When There Is No Will

When someone dies without a valid will in Delaware, the state does not just divide assets randomly. Title 12 of the Delaware Code establishes a precise statutory hierarchy — called intestate succession — that determines exactly who inherits, in what order, and in what proportions. Understanding this hierarchy is essential whether you are the surviving spouse trying to figure out what you receive, an adult child wondering about your share, or a distant relative trying to understand if you have any legal claim at all.

Delaware's Intestate Succession Order

When there is a surviving spouse

The surviving spouse's share depends on whether the decedent also left descendants (children, grandchildren) or other relatives.

Spouse and children:

• If the decedent left a surviving spouse and children from that marriage only, the spouse takes 50% of the personal estate outright. The children split the remaining 50%.
• If the decedent left children from a prior relationship (not the current spouse's children), the spouse still receives 50%, but the distribution is weighted to protect the non-joint children's share.

Spouse and no descendants, but surviving parents:

• The spouse receives 75% of the personal estate. The remaining 25% goes to the decedent's parents.

Spouse and no other surviving relatives:

• The spouse takes the entire estate.

Delaware law also provides the surviving spouse with a priority cash allowance of up to $7,500 from the estate, independent of the inheritance share. This allowance is a primary charge on the estate that must be paid before general unsecured creditors receive anything. The spouse must file a formal written demand with the Register of Wills and the executor within the shorter of nine months from the date of death or six months from the granting of letters.

When there is no surviving spouse

If there is no surviving spouse, the estate passes in this order:

1. Descendants (children first; if a child has predeceased the decedent, that child's share passes to their own children by representation)
2. Parents
3. Siblings (and the descendants of deceased siblings)
4. More distant relatives — grandparents, aunts, uncles, cousins, following the statutory bloodline

If no blood relative can be identified after an exhaustive search, the estate escheats to the state of Delaware.

What Assets Pass Under Intestate Succession?

Intestate succession only governs probate assets — property that was in the decedent's name alone with no designated beneficiary. Non-probate assets pass outside the intestate rules entirely:

• Joint tenancy with right of survivorship: passes directly to the surviving owner
• Bank accounts with a POD (payable-on-death) designation: goes to the named beneficiary
• Life insurance policies with named beneficiaries: paid to the beneficiary, bypasses probate
• 401(k)s, IRAs, pension accounts: controlled by beneficiary designation, not intestacy rules
• Assets held in a revocable living trust: governed by the trust document, not intestacy

This distinction matters enormously in practice. A family member searching for their intestate share will find that if the decedent held most wealth in joint accounts or named-beneficiary retirement accounts, there may be very little probate property subject to intestate distribution at all.

The Spousal Elective Share: An Important Overlay

Even in an estate where there is a will, Delaware's spousal elective share law gives a surviving spouse the right to claim one-third of the "elective estate" — which includes not only probate assets but assets held in a revocable trust. This prevents a spouse from being entirely disinherited through trust-based planning.

In an intestate estate, this issue rarely arises (the spouse is already taking under the intestacy statute), but executors administering intestate estates should still be aware of the six-month window for elective share claims. Distributing trust assets to children before that window closes can create personal liability for the administrator.

How Intestate Succession Affects the Administration Process

When someone dies without a will, the Register of Wills still administers the estate. Instead of appointing the executor named in a will, the Register issues Letters of Administration to an administrator. Delaware statute sets a priority hierarchy for who qualifies to serve as administrator:

1. Surviving spouse
2. Children
3. Grandchildren
4. Parents
5. Siblings

The administrator has the same duties and liabilities as an executor in a testate estate: filing the three-month inventory, managing the creditor claim period, filing the Final Accounting within one year. The same deadlines apply. The same late fees apply for missing them.

Common Misconceptions About Dying Without a Will in Delaware

"My spouse automatically gets everything." Not necessarily. If there are children — especially children from a prior relationship — the spouse shares the estate with them under Delaware's formula.

"My partner of 20 years inherits." An unmarried domestic partner has no intestate rights in Delaware. Cohabitation, no matter how long, does not create inheritance rights. If your partner has no will naming you as beneficiary, you have no legal claim to the probate estate.

"We just need to agree among family members." Beneficiaries can reach a family agreement, but that agreement must still go through the Register of Wills process. Informal division of assets without filing the required inventory and accounting can expose the administrator to legal liability.

"The house passes to whoever is living there." Real estate in the decedent's sole name is a probate asset subject to intestate succession. Occupying the property does not establish ownership rights.

When Family Conflict Arises

Intestate estates are more prone to conflict than testate ones, precisely because there is no document expressing the decedent's wishes. Beneficiaries who were excluded from the decedent's life sometimes assert claims; children from prior relationships may conflict with the surviving spouse; distant relatives may appear when there are no closer heirs.

If someone believes the administrator is withholding the estate's assets, mismanaging funds, or failing to provide transparent accounting, they can petition the Delaware Court of Chancery for relief. The Chancery Court can order the administrator to provide a formal accounting, remove them for cause, or award damages for breach of fiduciary duty.

The Delaware Estate Settlement Guide includes a full chapter on intestate succession — who qualifies as an administrator, how to handle competing claims, and the exact sequence of filings required to close an intestate estate cleanly at the Register of Wills.

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