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MORTL → State Guides → Delaware
State Guide
What Delaware law actually says about death, probate, cremation, advance directives, and estate taxes. No legal jargon. Just what you need to know.
Someone just died in Delaware? The first 24 hours, step by step →
Guide Status
● Last reviewed August 2026
Laws change. Each section shows when it was last verified. Always confirm with a licensed Delaware attorney for your specific situation.
This is general information, not legal advice. Delaware law changes. Your situation is specific. For anything that matters, talk to a licensed Delaware attorney. Our directory doesn't list attorneys, so you'll find one on your own.
The short answer
In Delaware, estates under $50,000 can skip full probate through a simplified process or affidavit. Cremation has no statutory waiting period. There's no Delaware estate or inheritance tax. Every figure below names its source and the date it was checked.
Reviewed August 2026 · Delaware
Someone just died in Delaware: the first 24 hours →Verified providers in Delaware →
Last verified: August 7, 2026
Source: 16 Del. C. § 3123 ↗At a Glance
File within 3 days · Restricted for 25 years · Then public
A death certificate for each death in Delaware must be filed with the Office of Vital Statistics within 3 days after death, or as soon as possible, and before final disposition of the body. The funeral director who takes custody of the body is responsible for filing the certificate.
Ask each bank, insurer, court, agency, and property office whether it requires a certified copy. Order an initial quantity based on those actual needs, and confirm the current fee and process for ordering more.
Certified copies of death certificates can be ordered by eligible individuals (e.g., immediate family) from the Delaware Office of Vital Statistics. Orders can be placed in-person, by mail, or online through authorized third-party services like VitalChek.
Order certified copies from Delaware's vital records office; this section's source link is the official process. The funeral home or cremation provider usually orders the first copies for you. Ask each bank, insurer, court, and agency whether it needs its own certified copy before you decide how many to order.
$25 per certified copy in Delaware, as shown above. Additional-copy pricing varies; the official source linked in this section has the current fee schedule.
Last verified: August 9, 2026
Source: 12 Del. C. § 501 et seq. (Intestate Succession) ↗At a Glance
Small estate threshold vs. national average
In Delaware, probate is generally required if the deceased owned more than $50,000 in personal property in their name alone, or if they owned real estate in their name alone. The small estate threshold was recently increased to $50,000.
Probate can be a lengthy and costly process, often taking 6 months to a year or more, depending on the complexity of the estate.
If a person dies in Delaware without a valid will (intestate), their assets are distributed according to state law. The surviving spouse has specific rights to personal property and a life estate in real property.
Delaware residents can use various strategies to avoid probate, such as establishing living trusts, designating beneficiaries on financial accounts and life insurance policies, and holding property in joint tenancy with rights of survivorship.
A straightforward Delaware probate typically runs 6-12 mo, as shown in this section. Contested wills, missing heirs, or real property in other states stretch it well past that.
$50,000. Estates under that figure can use the simplified process or affidavit covered above instead of full probate.
Not always. If the estate qualifies for the simplified process covered above, many people handle it without a lawyer. Hire one for full probate, a contested will, or property in more than one state. Before you hire anyone, know the fee structures: hourly, flat, and (in a few states) statutory percentages. Our probate attorney cost guide covers what each should run you.
No will yet, or one that's out of date? How to write a will covers what belongs in one and the signing requirements, step by step. The rules on this page are what Delaware law adds.
Yes. Delaware authorizes the transfer on death deed under Del. Code tit. 25, §§ 201-221 (Uniform Real Property Transfer on Death Act). Record it while you’re alive and the property passes to your named beneficiary at death, outside probate, revocable any time before then. Delaware's TOD deed is new: the act applies to deeds made before, on, or after December 4, 2025 for an owner who dies on or after that date, and it requires notarization plus two witnesses, at least one of whom isn't a beneficiary.
Source: Del. Code tit. 25, §§ 201-221 (Uniform Real Property Transfer on Death Act) ↗
Delaware doesn't require a private employer to give bereavement leave, paid or unpaid. Whatever you get is your employer's policy, and it can be changed or refused.
Who it covers. No private employees. The quoted 29 Del. C. § 5125 applies to state employees only, and § 5125(a)(3) defines "state employee" as "any full-time or part-time employee of the State."
How much. 0 required for private employers. State employees get up to 5 paid days, and only for pregnancy loss: miscarriage, stillbirth, or "other loss" as § 5125 defines it. A state employee whose spouse or parent dies gets nothing under this section.
Paid or unpaid. n/a (no private mandate). The state-employee leave is paid.
Batch note: federal FMLA does not require bereavement leave; the US DOL FMLA FAQ (dol.gov/agencies/whd/fmla/faq) enumerates the qualifying reasons (birth and bonding, adoption or foster placement, care of a family member with a serious health condition, the employee's own condition, military exigency and caregiver leave) and bereavement isn't among them. Delaware quirk: pregnancy loss is the one bereavement Delaware legislated, and only for state workers. 29 Del. C. § 5125 gives any state employee 5 paid days for miscarriage (loss before 20 weeks), stillbirth (20 weeks or more), or other loss, defined to include a diagnosis that negatively impacts pregnancy and termination regardless of medical necessity. Delaware Paid Leave doesn't cover bereavement.
Yes. Delaware enforces pet trusts under 12 Del. C. § 3555, so money you set aside for an animal is legally binding on whoever you put in charge of it. The trust ends when the last of your animals dies, and Delaware sets no year limit, so a young parrot or horse is covered for its whole life. Whoever you name in the trust enforces it, and if you name nobody, or the person you named stops being willing or able to do it, the Court of Chancery appoints someone. Anyone who genuinely cares about your animal can ask that court to appoint an enforcer or to remove one who isn't doing the job. Delaware covers only the animals that are alive when you die, so write the trust to reach every animal you own at that point instead of naming one pet. Delaware also gives no judge the power to cut back a pet trust for holding more money than the animal needs, so say in the trust itself where anything left over should go.
Last verified: July 17, 2026
Source: 12 Del. C. §§ 501 to 511 ↗If you die intestate (without a valid will) in Delaware, 12 Del. C. §§ 501 to 511 decides who inherits everything a will would have covered. The shares depend on exactly who survives you: spouse, children, parents, siblings. What you told people you wanted doesn't matter. Only a signed will changes these defaults.
Delaware splits real and personal property: whenever children or parents survive, the spouse never owns the real estate outright, only a life estate, with the remainder going to the children or parents. The next-of-kin catchall reaches any traceable relative, so escheat is rare.
What your spouse inherits depends on who else survives you. The four common family shapes:
The children take the whole estate per stirpes: equal shares per child, with a deceased child's share passing down that child's line.
After issue come the parents, then the parents' issue (siblings, then nieces and nephews) per stirpes, then the next of kin however remote, with a deceased next of kin's issue taking per stirpes; only if no kin at all can be found does the property escheat to the State of Delaware.
At a Glance
Living Will
Specifies end-of-life care wishes
Healthcare Proxy
Names a decision-maker for you
DNR / POLST
Do-not-resuscitate orders
Delaware rewrote this law and the new version applies to every advance health-care directive as of September 30, 2025. An advance health-care directive is a power of attorney for health care, a health-care instruction, or both. A health-care instruction doesn't have to be written down at all, and it needs no witness. A power of attorney for health care has to be in a record, signed by you, and signed by one adult witness. Delaware doesn't require notarization and doesn't require a second witness. The witness can be physically present, on video, or on a live audio call if they know you or can verify who you are.
Your one witness can't be the agent you're naming, or the agent's spouse, domestic partner, or live-in partner. If you live in or are being cared for at a nursing home or long-term care facility, the witness can't be an owner, operator, employee, or contractor of that facility. Delaware dropped the old rules about relatives and heirs, so a family member can witness now. (16 Del. C. § 2508)
Source: 16 Del. C. § 2508 (power of attorney for health care) ↗
A power of attorney for health care lets you appoint an agent to make medical decisions for you when you can't. It can include your health-care instructions in the same document. Some people can't serve as your agent: anyone a court has found to be a danger to you, anyone you have a protection from abuse order or pending petition against, and an owner, operator, employee, or contractor of the nursing home or long-term care facility where you live or are being cared for, unless that person is family, your live-in partner, or that partner's descendant.
Delaware uses the Delaware Medical Orders for Scope of Treatment form, DMOST, under 16 Del. C. ch. 25A. It's for people living with serious illness or frailty whose clinician wouldn't be surprised if they died within the year. A DMOST form is a set of portable medical orders that travel with you across care settings. The statute says plainly that it's separate from an advance health-care directive and doesn't require one.
Start with 16 Del. C. ch. 25 (Health-Care Decisions Act, rewritten by 84 Del. Laws, c. 467); 16 Del. C. ch. 25A (DMOST Act), linked as this section's source. Use the current form or sample that the official source provides or identifies. Form authority and execution requirements vary by state, so confirm the source before signing and get legal help if your situation or the instructions are unclear.
Delaware requires 1 adult witness; notarization isn’t required. Anyone 18 or older of sound mind can make one.
Last verified: August 7, 2026
Source: 16 Del. C. § 3101 et seq. & 24 Del. C. § 3101 et seq. ↗At a Glance
Delaware sets no waiting period after death. What it requires is paperwork. A body can be cremated only after a cremation permit signed by the chief medical examiner or a deputy, and that permit has to be presented along with a death certificate signed by the attending physician and a cremation authorization signed by the next of kin or legal representative. The medical examiner's signature is the affirmation that there's no medical reason to hold the body. The death certificate itself is due within 3 days of death and before any final disposition. A rigid, leak-resistant container is required for transport to the crematory, but no casket is required for the cremation.
Source: 16 Del. C. § 3159 (permit for cremation or natural organic reduction) ↗
Delaware allows green burial practices. Also, natural organic reduction (human composting) was authorized by House Substitute 1 for House Bill 162, signed into law on May 16, 2024, with regulations to follow. Alkaline hydrolysis isn't explicitly mentioned as legal.
Funeral homes and funeral directors in Delaware are licensed and regulated by the Board of Funeral Services. They must adhere to state regulations and federal laws, including the FTC Funeral Rule, which requires transparent pricing and itemized statements for services and merchandise.
Delaware sets this order by statute. The first person on the list who is available and willing decides, and a funeral home takes its instructions from them.
Naming someone in advance. A "declaration instrument": a written instrument signed by the declarant governing disposition of final remains and ceremonies (12 Del. C. § 260(3)), which may name who directs disposition and ceremonies (§ 262). Section 265 supplies a statutory Declaration of Disposition of Final Remains form (notarization optional per § 266(b)); § 266(a) allows any other form that complies substantially with § 265 and is written, dated and signed. A DD Form 93 is itself a valid declaration instrument (§§ 260(3), 264(d)), and the instrument may live inside a prepaid funeral, burial, cremation or natural organic reduction contract.
When the same tier disagrees. Section 264(c): if the assent of multiple persons in the adult-children, parents/guardians, or adult-siblings tiers cannot be obtained, a final judgment of the Chancery Court for the county of the decedent's residence is required, and that judgment must be consistent with the decedent's last wishes to the extent they are reasonable under the circumstances.
Delaware ranks the personal representative (or the will's nominee) above the decedent's adult children, which is unusual and matters when a will names an executor outside the family. Section 263(f) lets a funeral home or other third party disregard the decedent's stated intent if it is "unreasonable under the circumstances," a term § 260(8) ties to estate size, creditors, prepaid plans, and family, cultural or religious custom; § 266(d) makes the most recent declaration instrument control over any other document, and § 268 automatically revokes a spouse's designation on divorce, annulment or legal separation unless the instrument says otherwise. The statute contains two drafting quirks worth not copying blindly: paragraph (a)(8) refers back only to paragraphs (a)(1) through (a)(6), skipping (a)(7), and (a)(5) reads "the decent" for "the decedent."
Three separate pots of money, on three different agencies' websites, collected nowhere. A family that qualifies for all three usually claims none of them.
1. When nobody can pay. State-paid indigent burial under 31 Del. C. § 110, "Burial expenses of indigent person." Delaware is one of the few states where the burial is ordered by a state agency rather than a county. The statute reads: "An indigent person's remains may be buried at public expense on the order of the Division of Social Services." DHSS also procures this as "Indigent Burial and Cremation Services" through statewide contracts. Delaware Department of Health and Social Services (DHSS), Division of Social Services (DSS). The statute puts the burial order with DSS and the fee-setting with the Department.
What it pays. not published. 31 Del. C. § 110 names no dollar figure. Verbatim: "The fee shall be established by the Department at the lowest cost for which burial services which meet the standards can be locally obtained." No DHSS or DSS page publishing a rate could be read (see verdict). Third-party sites circulate a $400-$1,500 range; that figure does not appear on any official page I could reach, so it is not reported here.
What disqualifies you. An indigent person whose remains would otherwise go unburied; the order comes from the Division of Social Services, and the deceased's own assets and benefits are counted first. Verbatim from § 110: "In the event that funds are available from social security, Veterans' Administration or any other benefits or insurance, the compensation allowed to be paid for burial shall be reduced by the amount available from such benefits or insurance."
2. If the death was caused by a crime. "Funeral expenses and burial expenses not to exceed $7,500." (11 Del. C. § 9002, the compensable-loss list for the Victims' Compensation Assistance Program.) Overall cap, 11 Del. C. § 9011(d): "Compensation may not be awarded under the chapter to a claimant in a total amount in excess of $25,000; provided, however, that the Agency may award compensation to victims who are permanently and totally disabled in an amount not to exceed $50,000."
Delaware crime victim compensation ↗
3. Money the person was already owed. Search Delaware's unclaimed property before you borrow anything. Searching and claiming are free.
A VCAP claim must be filed within 1 year of the injury or death (11 Del. C. § 9010(a)(4)), though the Agency can extend it. Anyone who "legally or voluntarily assumes the obligation to pay the medical or burial expenses" can file, so a friend or a funeral home that fronted the cost is eligible, not only next of kin. For the state burial, whatever Social Security, VA, or insurance money exists is subtracted first, so the state pays the remainder rather than a flat grant.
Last verified: July 16, 2026
Source: 30 Del. C. ch. 15 (Estate Tax, repealed by 81 Del. Laws ch. 52, eff. Jan. 1, 2018) ↗At a Glance
Delaware repealed its estate tax effective January 1, 2018. Therefore, estates of Delaware residents aren't subject to a state-level estate tax.
While Delaware has no state estate tax, federal estate tax still applies to very large estates. Plan accordingly if your estate is near the federal threshold.
Delaware doesn't impose an inheritance tax. This means beneficiaries inheriting property from a Delaware decedent don't pay a state tax on their inheritance.
The federal estate tax applies to estates over $15 million per person (2026), $30 million for married couples. This is separate from any state estate or inheritance tax. The Working Families Tax Cuts Bill (Public Law 119-21, 2025) made the higher exemption permanent, so the drop to roughly $7 million once scheduled under the Tax Cuts and Jobs Act never took effect.
No. Delaware has no state estate tax. Only the federal estate tax applies, and only to estates over $15 million per person (2026), $30 million for a married couple.
No. Delaware doesn’t tax inheritances. Heirs owe no state tax on what they receive.
$15 million per person, $30 million for a married couple, indexed for inflation. The Working Families Tax Cuts Bill (Public Law 119-21, 2025) made the higher exemption permanent. Estates below the threshold owe no federal estate tax.
Last verified: August 8, 2026
Source: 16 Del. C. § 2710 et seq. (Uniform Anatomical Gift Act) ↗At a Glance
In Delaware, you can register to be an organ, eye, and tissue donor when you apply for or renew your driver's license or state identification card at the DMV. You can also register online through the Gift of Life Donor Program, which serves Delaware.
In Delaware, a registered organ donor decision is legally binding. The statute says your gift may not be revoked by your next of kin, and their consent isn't needed to make it valid (16 Del. C. § 2711(g)). Only you can amend or revoke it (16 Del. C. § 2715). In practice, organ procurement organizations still consult families, so tell yours what you decided.
Need Help in Delaware?
Wills, trusts, advance directives, and probate all benefit from a licensed professional. We've compiled a directory of funeral directors, grief counselors, hospice providers, and financial advisors. Sorted by state. Before a listing appears, we check the provider's phone and address against the provider's own website.
Find Help in Delaware →From The MORTL Edit
Sources: Delaware Code Title 16 (Health and Safety), Title 12 (Decedents' Estates and Fiduciary Relations), Title 24 (Professions and Occupations). Individual sections are updated and re-dated whenever a law changes, which is why the date at the top of the guide can be newer than this one. The whole guide also gets a front-to-back review on a schedule. Last front-to-back review: June 2026.
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