## Elective share in Delaware
An **elective share** lets a surviving spouse claim a minimum portion of the deceased spouse's estate — overriding the will's terms. It exists to prevent disinheritance of spouses.
### Delaware elective share
1/3 of elective estate.
## Why elective shares exist
Without elective-share laws, a spouse could be entirely disinherited by will. Elective shares ensure the surviving spouse gets some minimum share — even if the will leaves everything to children, charity, or others.
## Three frameworks across states
**1. Common-law fixed share.** Statutory percentage (typically 1/3 or 1/2) of probate estate, regardless of marriage length:
- Often "1/3 if descendants"; "1/2 if no descendants"
- Calculated against probate estate (not non-probate transfers)
- Older approach with disadvantages
**2. Uniform Probate Code (UPC) augmented estate sliding scale.** Adopted in modified form by many states:
- **Augmented estate** includes non-probate transfers (life insurance, joint accounts, trusts) — closes loopholes
- **Sliding scale** based on marriage length (3% under 1 year up to 50% at 15+ years)
- Better protection for long marriages; less for short marriages
**3. Community / marital property.** AZ, CA, ID, LA, NV, NM, TX, WA + WI: surviving spouse owns 1/2 of community property automatically — no traditional elective share needed.
## Augmented estate (UPC states)
**Augmented estate** prevents disinheritance via non-probate transfers. Includes:
- Probate estate
- Will substitutes (revocable trusts, POD accounts)
- Life insurance proceeds
- Joint tenancy property (the deceased's portion)
- Retirement / pension benefits paid out
- Property given away within 2 years of death
Spouse's own assets are also added to the calculation, then deducted as a credit. This balances the calculation when both spouses have substantial assets.
## When elective share applies
- **Death of one spouse**
- **Surviving spouse is alive at death**
- **Marriage was valid** (not annulled)
- **No effective waiver** (prenup, postnup, ante-nuptial agreement)
- **Election filed within statutory deadline** (typically 6-9 months from will admission)
## Time limits
All states require timely filing:
- **Most states** — 6-9 months from will admission to probate
- **Some states** — extended for good cause
- Missing the deadline = forfeit the right
## Ways spouse can lose elective share
- **Prenup / postnup** waiving right
- **Separation agreement** waiving
- **Abandonment** (in some states)
- **Adultery** (in some old-school states)
- **Murder** of decedent (slayer rule)
- **Late filing**
## Strategic considerations
**For surviving spouse:**
- Compare elective share vs will provisions
- Consider tax implications (some elective-share property triggers tax)
- Account for non-probate transfers received outside the will
- File within deadline
- Consider bringing will-contest in parallel
**For estate planners:**
- Spouses can reduce elective shares with valid prenups
- Some states allow trust transfers that reduce augmented estate
- Estate planning for blended families needs careful elective-share analysis
- Charitable gifts may face reduction by elective-share claims
## Election waiver — prenup / postnup
Most states recognize prenuptial / postnuptial waivers of elective share IF:
- Voluntary
- Full disclosure
- Signed before / during marriage
- Knowledge of right being waived
- Not unconscionable
Without a waiver, spouses retain elective-share rights regardless of will provisions.
## What you should do
If you're a surviving spouse in Delaware: review the will + elective-share calculation immediately. Hire a probate attorney quickly — deadlines are short. If you're an estate planner: don't ignore elective shares when designing plans for second marriages, blended families, or contentious situations. Most Delaware estate-planning / probate attorneys offer paid initial consultations.
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*This guide is general information about Delaware law as of early 2026 and is not legal advice. Elective-share calculations are technical. Talk to a licensed Delaware probate / estate-planning attorney about your specific situation.*
This guide is for general information only and does not constitute legal advice. Laws change and outcomes depend on your specific situation — talk to a licensed attorney before acting on anything you read here.