Updated September 5, 2026. Quick answer: Delaware’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. one-third (1/3) of the elective estate, less the amount of all transfers to the surviving spouse by the decedent
What Delaware actually sets out
| What the statute sets out | What it says |
|---|---|
| 12 Del. C. Sec. 901 (elective share) | “an amount equal to one third of the elective estate, less the amount of all transfers to the surviving spouse by the decedent” |
| The share and what it is measured against | one-third (1/3) of the elective estate, less the amount of all transfers to the surviving spouse by the decedent; measured against the ‘elective estate’ (Delaware’s own defined, augmented-estate-like term). |
| Regime type | flat fraction, not tied to marriage length |
| Can it be waived | may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving |
| Time limit to file | petition must be filed within 6 months after the grant of letters testamentary or of administration; extendable for cause |
How it works in practice
- The share is measured against the ‘elective estate’ (Delaware’s own defined, augmented-estate-like term).
- No. This state’s formula is deliberately built to reach revocable trusts, payable-on-death accounts and other lifetime transfers, precisely so the elective share cannot be defeated by moving assets out of probate before death.
- Waiver: May be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving.
- The election has to be affirmatively filed on a deadline: petition must be filed within 6 months after the grant of letters testamentary or of administration; extendable for cause.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Delaware specifically, and its own numbers above should be used instead of the calculator’s national default for a Delaware estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This citation and figure were fetched directly from the state’s own official code site and read against the current text this session.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Delaware is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.