What are your rights as a surviving spouse in Delaware if your spouse died without a will?

Short answer: As a surviving spouse in Delaware, you have important legal rights even if your spouse died intestate (without a will). Those rights generally include a priority to be appointed the estate’s administrator, an inheritance share under Delaware’s intestacy rules, short-term financial protections (like a family allowance and certain exempt property), and the ability to challenge appointments or distributions if others try to cut you out. This is a general explanation — it is not legal advice.

Disclaimer: This article is for general information only and is not legal advice. For guidance specific to your situation, please consult a Delaware-licensed attorney.

Detailed answer — how Delaware law treats a surviving spouse when a spouse dies intestate

1. Intestate succession — the surviving spouse’s inheritance rights

If a person dies without a valid will, Delaware’s intestacy rules determine who inherits. The surviving spouse is always a primary heir, but the exact share depends on whether the decedent left surviving children or other close relatives. The Delaware statutes that govern intestate succession are in Delaware’s Decedents’ Estates provisions (Title 12). For the statutory rules, see the Decedents’ Estates chapter of the Delaware Code:

Delaware Code — Title 12, Chapter 9 (Intestate Succession)

Key points about intestacy you should know:

If there are no surviving descendants (children, grandchildren) or parents, the surviving spouse usually inherits the entire estate.
If there are surviving descendants who are also descendants of the surviving spouse (for example, children the couple had together), the spouse often receives the entire estate.
If the surviving descendants are not descendants of the surviving spouse (for example, the decedent’s children from a prior relationship), the spouse’s share can be smaller and the decedent’s other children may share in the estate.

2. Priority to be appointed estate administrator (letters of administration)

When someone dies intestate, a person must be appointed by the court (or register of wills) to administer the estate and distribute assets according to the law. In many cases, the surviving spouse has priority to be appointed as the personal representative or administrator. If someone else (e.g., a relative) is trying to control the estate and exclude you, you can petition the court to appoint you as the administrator so you can protect your rights and manage estate affairs.

To start the probate/administration process, you normally file a petition in the appropriate Delaware probate office or with the county register of wills. Delaware’s Register of Wills resource is a good place to learn local procedures:

Delaware Courts — Register of Wills and Probate Information

3. Short-term protections: family allowance, exempt property, and funeral direction

Delaware law provides short-term protections to a surviving spouse while the estate is being administered. Typical protections in many probate systems include:

Family allowance: A temporary payment from the estate for the spouse’s support during administration (to cover reasonable living expenses while the estate is settled).
Exempt property or household goods: Statutory exemptions that allow the surviving spouse to keep certain personal items, household goods, and sometimes a vehicle up to a statutory limit.
Direction of burial/ funeral arrangements: The person with legal authority (often the spouse) has priority to direct disposition of the decedent’s remains. If family members are trying to exclude you from making burial decisions, you can assert this right through the court or by producing a valid death certificate and proof of your marriage.

4. Right to information, accounting, and to object to mismanagement

Once an administrator is appointed, beneficiaries (including a surviving spouse) have the right to receive information about the estate, such as inventories, accountings, and notices of creditor claims and distributions. If someone is administering the estate improperly or excluding the spouse from decision-making, the spouse can:

Request a formal accounting from the administrator;
Object in court to the administrator’s actions;
Move to remove an administrator for misconduct or failure to follow fiduciary duties;
Seek temporary injunctive relief to prevent transfers or sale of estate assets while the dispute is resolved.

5. Practical remedies if the family is cutting you out

If the decedent’s family is attempting to exclude you from decisions about the estate, consider these actions:

Collect documentation quickly: marriage certificate, death certificate, any statements showing joint ownership or designated beneficiaries (bank accounts with POD, life insurance, retirement accounts).
File for appointment as administrator (letters of administration) in the county register of wills or probate court if you want authority to manage estate affairs.
Ask the court for emergency relief (temporary orders) if family members are moving assets or preventing you from accessing property needed for day-to-day support or funeral arrangements.
Request statutory protections (family allowance and exempt property) promptly in the probate filing.
If someone else is already appointed, you can petition the court to remove or account for them if they are mismanaging the estate or breaching fiduciary duties.

6. Non-probate assets and beneficiary designations

Not all assets pass through probate. Accounts and policies that name a specific beneficiary (life insurance, retirement accounts, payable-on-death bank accounts, joint tenancy property with right of survivorship) pass outside of probate directly to the named beneficiaries or to the surviving joint owner. Check beneficiary designations and account ownership quickly — these can affect what you receive without waiting for probate.

7. When to consult an attorney

Because probate rules, timelines, and remedies can be complex and time-sensitive, you should consult a Delaware probate attorney if:

You are being excluded from funeral decisions or from access to household property;
Family members already without court authority are trying to take or hide assets;
You want to be appointed administrator but someone else has filed first;
There are disputes over who inherits or over the amount of the surviving spouse’s share.

Helpful Hints

Obtain multiple certified copies of the death certificate right away; many institutions require them.
Gather proof of marriage (marriage certificate) and any documents showing joint ownership or named beneficiaries.
Contact the county Register of Wills to learn local filing steps and what forms you need: courts.delaware.gov/registerofwills.
Preserve evidence of family members’ interference (texts, emails, witness statements) if they are preventing you from acting as spouse.
Ask about immediate protections: family allowance, exempt property, and emergency court orders to prevent dissipation of assets.
Remember some property passes outside probate (life insurance, retirement accounts, jointly owned property). Check beneficiary designations quickly.
Keep communications written and dated. If you speak to banks or institutions, follow up in writing and keep copies.

Where to read the statutes and find local probate offices

Delaware statutes governing decedents’ estates are in Title 12 of the Delaware Code. Useful links:

Example hypotheticals to illustrate

Example 1 — No children, only spouse: If John (who had no children or surviving parents) died without a will, his surviving spouse Mary would typically inherit the entire estate under intestacy. Mary could petition to be administrator and distribute assets according to the law.

Example 2 — Children from prior relationship: If Jane dies leaving a surviving spouse and two adult children from a prior relationship, the spouse will still inherit, but the estate share may be divided between the spouse and the decedent’s children under Delaware intestacy rules. The spouse should file for administration and consult a lawyer to determine the exact share.

Next steps

If you are being cut out of decisions after your spouse’s death, act promptly: collect documents (death certificate and marriage certificate), contact the local register of wills to learn about filing for administration, and speak with a Delaware probate attorney to protect your rights and pursue necessary court actions.

Again, this is general information and not legal advice. For advice tailored to your facts, consult a Delaware-licensed attorney who handles probate and estate matters.