What Families Need to Know After a Death in Delaware

Delaware is a small state with its own distinct probate code — it does not follow the Uniform Probate Code used by many other states. Probate is administered county by county through the Register of Wills, and Delaware's rules on wills, spousal rights, and advance directives carry details that matter when you are settling an estate. This guide covers the six areas of Delaware law most likely to affect what you need to do next.

Probate
Probate & Small Estate Rules in Delaware

Delaware probate is handled by the Register of Wills in each of the state's three counties — New Castle County (Wilmington), Kent County (Dover), and Sussex County (Georgetown). You file in the county where the deceased lived at the time of death. Delaware operates under its own probate code and does not follow the Uniform Probate Code adopted by many other states, so rules from neighboring states do not translate directly.

For smaller estates, Delaware offers an important shortcut. Under 12 Del. C. § 2306, an estate whose personal property is worth $50,000 or less — with no Delaware real estate owned alone or as a tenant in common — can be collected by a small estate affidavit 30 days after death, once known debts and the surviving spouse's allowance are paid or provided for. This avoids opening a full administration. If the estate includes any real property, formal administration is required regardless of the estate's total value.

When formal probate is required, creditors generally must present claims that arose before death within 8 months of the date of death (12 Del. C. § 2102), so many estates stay open at least that long. In practice, most larger Delaware estates take 12 to 18 months from filing to final distribution. Delaware has no state estate tax — the legislature repealed it effective January 1, 2018 — so there is no state-level tax filing to worry about for the estate itself. The federal estate tax may still apply to very large estates.

If you are weighing whether to hire an attorney, see probate lawyer costs by state for typical fee ranges, including Delaware. Executor pay is covered in executor fees by state.

Wills
Will Signing Requirements in Delaware

A valid Delaware will requires the testator's signature plus two or more credible witnesses who must attest and sign the will in the testator's presence (12 Del. C. § 202). Both witnesses must observe the testator sign — or acknowledge their signature — and then sign the will themselves. Notarization is not required for a standard witnessed will in Delaware.

One important distinction: Delaware does not recognize holographic wills. Unlike many states that accept a handwritten, unwitnessed document as a valid will, Delaware requires that every will be witnessed. If you find a handwritten document that appears to express the deceased's wishes, it will not be admitted to probate in Delaware unless it also meets the two-witness requirement. Do not discard it — consult the Register of Wills — but understand that an unwitnessed handwritten will has no legal force in this state.

Delaware does allow a self-proving affidavit, which is a notarized statement attached to the will confirming that all signing formalities were observed. A self-proving will streamlines the probate process by eliminating the need to locate and depose witnesses after death. If someone is creating or updating a will in Delaware, a self-proving affidavit is worth including.

If a person dies without a valid will — called dying intestate — the estate passes under Delaware's intestate succession statute at 12 Del. C. § 502. The Register of Wills will still need to open an administration proceeding, and the court will appoint an administrator to manage the estate.

Advance Directive
Delaware Advance Health Care Directive

Delaware uses a combined form called the Delaware Advance Health Care Directive (AHCD), governed by Delaware's Uniform Health-Care Decisions Act (16 Del. C. ch. 25, revised in 2023) This single document serves two purposes: it names a healthcare agent (the person who makes medical decisions if you cannot) and it records your treatment preferences (including end-of-life care). Because both functions are in one document, you do not need a separate living will.

Under the current law, a health-care power of attorney is signed by the individual and one adult witness, who cannot be the agent, the agent's spouse or partner, or an owner, operator, or employee of the person's care facility (16 Del. C. § 2508). Different rules apply to an advance mental-health directive. Delaware's law changed recently, so use the current state form and ask a Delaware attorney or hospital to confirm. Hospitals, hospice providers, and care facilities throughout Delaware are required to honor a valid AHCD on file.

Delaware also uses a separate physician-signed medical order called a DMOST — Delaware Medical Orders for Scope of Treatment. The DMOST is distinct from the AHCD. Where the AHCD is a legal document that expresses your wishes, the DMOST is a clinical order that translates those wishes into immediate medical instructions. Both can coexist: the DMOST governs real-time decisions by emergency responders and care teams, while the AHCD governs longer-term healthcare authority and names the agent who acts if no DMOST is in place.

If you are settling an estate and the deceased had an AHCD or DMOST on file, these documents governed care decisions before death but have no ongoing legal effect on the estate itself.

Spousal Rights
Spousal Rights Under Delaware Estate Law

Delaware is not a community property state. Spouses do not automatically share equal ownership of property acquired during the marriage the way they do in California, Texas, or the other community property states. Instead, Delaware follows the common-law property system, where each spouse owns whatever is titled in their name — subject to significant protections for the surviving spouse.

If the deceased had no will, Delaware's intestate succession rules at 12 Del. C. § 502 determine what the surviving spouse receives:

• If the deceased left a spouse and children who are all also the spouse's (or no children but a surviving parent): the spouse takes the first $50,000 of the personal estate plus half of the remaining personal estate, plus a life estate in the real estate (the right to use it for life).
• If one or more of the deceased's children are not the spouse's: the spouse takes half of the personal estate plus a life estate in the real estate.
• If the deceased left a spouse and no children and no parents: the spouse takes the entire estate.

Even when there is a valid will, a surviving spouse cannot be entirely disinherited. Delaware's elective share law (12 Del. C. § 901) allows a surviving spouse to claim one-third of the augmented estate regardless of what the will says. The augmented estate includes both probate and certain non-probate assets, making this a meaningful protection against being cut out of the estate.

Delaware also provides a homestead exemption and a family allowance — a sum set aside for the surviving spouse and minor children during estate administration — which ensures some financial support while probate is pending.

Vehicle Transfer
Transferring a Vehicle After Death in Delaware

Vehicle transfers after death in Delaware are handled through the Delaware Division of Motor Vehicles (DMV). The correct transfer path depends on how the vehicle was owned and the size of the estate.

If the estate qualifies for the small estate affidavit (personal estate of $50,000 or less and no Delaware real estate), the vehicle may be included in that simplified process. For larger estates going through formal probate, the personal representative will need Letters Testamentary — the court-issued document authorizing them to act — before the DMV will process a transfer of title.

If the vehicle was titled with a joint survivorship designation, title passes directly to the surviving co-owner upon presentation of a death certificate. No probate or court order is required for jointly-titled vehicles.

Vehicles held in a revocable living trust transfer to the successor trustee without any court involvement. The successor trustee presents the trust document and death certificate to the DMV and re-titles the vehicle. This is one of the practical advantages of funding a trust with vehicle titles during the owner's lifetime.

For all transfers, the Delaware DMV will require a certified copy of the death certificate and the original title. If the vehicle carries a lien, the lienholder must release the title before any transfer can proceed.

Medicaid Recovery
Medicaid Estate Recovery in Delaware

Delaware Medicaid — administered by the Department of Health and Social Services (DHSS) through the Division of Medicaid and Medical Assistance (DMAP) — has the right to seek reimbursement from a deceased beneficiary's estate for long-term care costs paid after age 55. This is known as Medicaid estate recovery, and it applies to benefits received for nursing home care, home- and community-based services, and related long-term care costs.

Delaware limits recovery to the probate estate. Assets that pass outside probate — through a living trust, joint tenancy, payable-on-death bank accounts, or beneficiary designations on retirement accounts and life insurance — are not subject to Medicaid recovery in Delaware. This makes estate planning particularly important for families with a loved one receiving Medicaid-funded long-term care.

Recovery is deferred in three situations:

• A surviving spouse is still living.
• A surviving minor child (under age 21) is still living.
• A surviving blind or permanently and totally disabled child is still living, regardless of age.

If none of these waivers apply, Delaware DHSS/DMAP must be notified before estate assets are distributed. Distributing assets without notifying Medicaid can expose the personal representative to personal liability for the amount owed. Contact DHSS before making any distributions if the deceased received long-term care benefits through Delaware Medicaid.

To confirm whether a claim exists, write to Delaware DHSS/DMAP with the deceased's name, date of birth, date of death, and Medicaid ID if available. DHSS will respond with the amount of any recovery claim, which must be paid before other debts are settled and before distribution to heirs.

For how the federal estate recovery rules work, which survivors are protected, and how hardship waivers work, see our guide to Medicaid estate recovery.

Frequently Asked Questions

What is Delaware's small estate threshold for avoiding probate?

Delaware's small estate affidavit (12 Del. C. § 2306) can be used 30 days after death when the deceased's personal estate (not counting jointly owned property) is worth $50,000 or less, known debts and the spouse's allowance are paid or provided for, and the deceased owned no Delaware real estate alone or as a tenant in common. The spouse or a close relative signs the affidavit under oath and presents it with a Register of Wills certificate to collect assets.

Does Delaware have a state estate tax?

No. Delaware repealed its state estate tax effective January 1, 2018. There is no Delaware estate tax for deaths occurring on or after that date. The federal estate tax may still apply to very large estates — currently those above the federal exemption threshold.

Where is Delaware probate filed?

Delaware has three counties, each with its own Register of Wills: New Castle County (Wilmington), Kent County (Dover), and Sussex County (Georgetown). Probate is filed in the county where the deceased lived at the time of death.

What is the difference between a Delaware DMOST and an advance directive?

A Delaware Advance Health Care Directive (AHCD) is a legal document signed in advance that names a healthcare agent and states your treatment preferences. A DMOST (Delaware Medical Orders for Scope of Treatment) is a physician-signed medical order that translates those preferences into immediate clinical instructions. Both can coexist — the DMOST governs real-time medical decisions while the AHCD governs broader healthcare authority.

Does Delaware Medicaid recover from trusts and jointly-held assets?

No. Delaware Medicaid (DMAP) recovery is limited to the probate estate. Assets held in revocable living trusts, joint tenancy, or accounts with beneficiary designations that pass outside probate are not subject to Medicaid estate recovery in Delaware.

Does Delaware recognize holographic (handwritten) wills?

No. Delaware does not recognize holographic wills. A valid Delaware will must be attested and signed in the testator's presence by two or more credible witnesses, per 12 Del. C. § 202. A handwritten, unwitnessed document will not be admitted to probate in Delaware.