Updated October 8, 2026. Quick answer: No. Delaware is a common law state. At divorce, 13 Del. C. section 1513 has the court “equitably divide, distribute and assign the marital property between the parties”, and at death the surviving spouse can elect one third of the elective estate. The IRS lists nine community property states.
Delaware community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court divides marital property in proportions it deems just (13 Del. C. 1513) |
| At a spouse’s death | An elective share equal to one third of the elective estate (12 Del. C. 901) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Delaware General Assembly (Delaware Code Online); IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Delaware statutes say
Delaware’s divorce statute uses the term marital property and tells the court to divide it “in such proportions as the Court deems just”. Property acquired during the marriage is “presumed to be marital property regardless of whether title is held individually”.
At divorce in Delaware
Just is not the same as equal: section 1513 lists the factors the court weighs, and the text read sets no fixed split.
At a spouse’s death in Delaware
Under 12 Del. C. 901, a surviving spouse has a “right of election to take an elective share”. The share is “equal to one third of the elective estate”, reduced by transfers the decedent made to the survivor, as the section states.
What it does to basis when the first spouse dies
Because Delaware is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a Delaware couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- Section 902, which defines the elective estate, was not read in detail, so this page does not say what counts toward the one third.
Common mistakes
- Assuming the one third is a share of everything the decedent owned; the statute measures it against the elective estate, which section 902 defines.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: why only half steps up in a common law state, Delaware retirement taxes, and Delaware probate cost.
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Answer againSources
- 13 Del. C. section 1513 Disposition of marital property (Delaware Code Title 13, Chapter 15): https://delcode.delaware.gov/title13/c015/index.html
- 12 Del. C. section 901 Right to elective share (Delaware Code Title 12, Chapter 9): https://delcode.delaware.gov/title12/c009/index.html
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.