A decedent’s nearest blood relatives and surviving spouse are considered next of kin under Delaware law for the purposes of the laws of descent and distribution when a decedent dies without a valid will. Therefore, next of kin under Delaware law include:
- Surviving spouse
- Children
- Parents
- Siblings
- Grandparents
What Next of Kin Inherit Under Delaware Law of Intestate Succession?
Delaware’s intestate succession laws apply when a decedent dies without a valid will. The intestate succession laws dictate who inherits from a decedent’s estate. The next of kin that inherit under Delaware’s intestate succession laws depends on the other people that survived the decedent.
Survivors Of the Decedent | Share Of Intestate Estate |
Spouse only | – Spouse inherits entire estate |
Spouse and parent(s), no issue | – Spouse inherits first $50,000, plus ½ of the balance of the personal property, plus life estate in the intestate real estate – Parent(s) inherit remaining |
Spouse and issue (all shared issue of spouse and decedent) | – Spouse inherits first $50,000, plus ½ of the balance of the personal property, plus life estate in the intestate real estate – Issue inherit remaining |
Spouse and issue (one or more issue are not issue of surviving spouse) | – Spouse inherits ½ of the personal estate plus life estate in the intestate real estate |
Children/issue only, no surviving spouse | – Children inherit entire estate |
Parent(s) only, no children or surviving spouse | – Parent or parents inherit estate equally |
Brothers and sisters only, no parents, children, or spouse | – Brothers and sisters and the issue of each brother or sister inherit estate per stirpes |
None of the above | – Next of kin and to the issue of a deceased next of kin, per stirpes |
Delaware’s intestate succession laws can be found at 12 DE Code §502 and §503.
What Do Intestate Heirs Inherit Under Delaware Law?
Intestate heirs inherit assets from a Decedent’s probate estate. Assets that are non-probate assets are not distributed under Delaware’s laws of intestate succession. Instead, the distribution of non-probate assets after death is governed by the titling of the asset or the pay-on-death designations. To learn about probate versus non-probate assets, see Probate and Non-Probate Assets Chart.
Status as a Delaware decedent’s next of kin or intestate heir has no bearing on the inheritance of non-probate assets.
Delaware Requires That A Next Of Kin Heir Survive Decedent For 120 Hours
Under Delaware law, an intestate heir is required to survive the decedent for at least 120 hours. If an intestate heir does not survive the decedent for 120 hours, Delaware law treats the next of kin heir as having predeceased the decedent. This means that the heir does not inherit from the Decedent’s intestate estate, and the estate will be distributed as if the decedent survived the heir.
12 DE Code §504 sets forth the 120 hour survivorship requirement and states:
Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the State under this title.
What Does “Child” Mean In Delaware Intestate Succession Law?
The term “child” under Delaware’s intestate succession law includes an adopted child, but not a foster or step-child not legally adopted.
A person born out of wedlock is a child of the mother, and is a child of the father if legitimated under Chapter 13 of Title 13 of the Delaware Code, or if the natural parents participated in a marriage ceremony before or after the birth of the child, or if paternity is established before or after the death of the father. Delaware law concerning the meaning of “child” can be found in 12 DE Code §508.
A Delaware probate lawyer can help you figure out your status as a next of kin intestate heir.
