What the rule says
Delaware's intestacy framework, codified at Del. Code tit. 12, § 502, follows a UPC-influenced approach:
- Spouse and all descendants are mutual: The spouse takes the entire estate. - Spouse and at least one descendant from prior relationship of decedent: The spouse takes the first $50,000 plus one-half of the balance. - Spouse but no descendants: The spouse takes the entire estate (in some configurations) or the first $50,000 plus three-quarters of the balance with parent surviving. - Descendants but no spouse: Descendants take the entire estate by representation.
Delaware's $50,000 floor for blended families is among the lower in UPC-influenced states.
What this means in practice
- Delaware resident dies without a will, leaving spouse and three mutual children. Estate $400,000. Spouse takes the entire $400,000. - Delaware resident dies without a will, leaving spouse and one child from prior relationship. Estate $400,000. Spouse takes $50,000 + 50% of $350,000 = $225,000. Child takes $175,000.
What you can do about it
- Delaware will requirements (Del. Code tit. 12, § 202). A will must be in writing, signed by the testator, and signed by two credible witnesses. - Delaware does not recognize holographic wills. - Self-proving affidavits are recognized. - Beneficiary designations override intestacy. - Spousal election. Under Del. Code tit. 12, § 901 et seq., surviving spouse can elect against the will.
Who this affects most
Delaware's intestacy formula is most consequential for married Delaware residents in mutual-descendants families (favorable) and blended families with the $50,000 floor.