Disclaimer: This article is for educational purposes only. It does not constitute legal advice. You should consult a qualified attorney for advice tailored to your situation.
Detailed Answer
Under Delaware law, a surviving spouse may claim a family allowance from the decedent’s estate to cover basic living expenses. The allowance process falls under Title 12, Chapter 19 of the Delaware Code. To qualify, the court must confirm your status as a lawful spouse. A complete marriage certificate serves as primary evidence.
If your marriage certificate is incomplete or missing, the Orphans’ Court may delay or deny your allowance until you prove the marriage. Delaware law does not automatically reject your claim when a certificate is unavailable; instead, the court accepts alternative proof under certain conditions.
First, you should file an application for family allowance with the Register of Wills or Orphans’ Court, per 12 Del. C. § 1912. In your application, explain why the certificate is incomplete or missing. Common reasons include clerical errors, failure of the officiant to file the certificate with the Division of Public Health, or loss of records in a fire or flood.
Next, gather secondary evidence of your marriage. Delaware courts typically accept:
• Affidavits from the officiant or two witnesses
• Church or synagogue records
• Joint tax returns or bank statements identifying you as spouses
• Photographs, invitations, or correspondence identifying you as married
When you present this evidence, the court will weigh it under the same standards that apply to vital records. The Vital Records Act, found in Title 16, Chapter 1, requires that marriage certificates be kept by the Division of Public Health. If the official record is missing, you can request a certified “Search Certificate” or affidavit from the Division explaining the absence, under 16 Del. C. § 103.
Once you assemble alternative proof, the Orphans’ Court will decide whether to accept it in lieu of a formal certificate. If accepted, the court typically sets the family allowance amount under 12 Del. C. § 1902 and disburses it from estate assets. If the court finds the evidence insufficient, it may continue to hold the request until you produce stronger proof or may deny the allowance entirely.
Helpful Hints
- Act promptly. File your allowance application within months of the decedent’s death to avoid missed deadlines.
- Obtain a Search Certificate from the Division of Public Health before gathering secondary evidence.
- Collect multiple forms of proof—affidavits, financial records, and personal correspondence strengthen your claim.
- Keep records organized. Present a clear timeline showing you lived as spouses.
- Consult the Orphans’ Court rules in your county for local filing procedures and fees.
- Consider hiring an estate attorney if you encounter resistance or complex disputes over your marital status.