Delaware Code

12 Del. C. § 901 (2026)

Right to elective share

✓ current as of May 2026

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(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of an amount equal to one third of the elective estate, less the amount of all transfers to the surviving spouse by the decedent, under the limitations and conditions hereinafter stated. The elective share may be satisfied in cash or in kind, or partly in each. Assets distributed in satisfaction of the elective share shall be valued at date of distribution.

(b) In determining the elective share under subsection (a) of this section or in the case of the death of a married person not domiciled in this State, the right, if any, of the surviving spouse to take an elective share in real or tangible personal property shall be governed by the law of the situs of such property.

59 Del. Laws, c. 384, § 1; 65 Del. Laws, c. 428, § 1; 67 Del. Laws, c. 240, § 1; 74 Del. Laws, c. 271, § 1;

Notes of Decisions

Cited in 3 cases (1 in the last 5 years), 2015–2022 · leading case: In the Matter of the Est. of Lawrence M. Sullivan, Sr. (Del. Ch. 2022).

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In the Matter of the Est. of Lawrence M. Sullivan, Sr. (Del. Ch. 2022). · cites it 2× “45 But the Petitioner argues that 12 Del. C. § 901 leads to the same conclusion—because the right of election does not arise until a spouse’s death, the Petitioner argues her claim did not begin to accrue until the Decedent’s death.”

Geraldine Messick v. Est. of Ronald R. Messick (Del. Ch. 2015). · cites it 2× “Messick opposes the petition and argues that requiring 1 See 12 Del.C. § 901(a). 2 See 12 Del. C.§ 902(a).”

Nataliya v. Wolhar v. Carolyn Wolhar, of the Est. of Kenneth R. Wolhar (Del. Ch. 2018). “Balancing of Hardships Nataliya also argues the balancing of the hardships weighs in her favor, or that the harm to her if the relief she requests is not granted (if Carolyn does not place 27 12 Del. C. § 901(a). 28 12 Del. C. § 908(a).”

— 12 Del. C. § 901(a) — 3 cases

Geraldine Messick v. Est. of Ronald R. Messick (Del. Ch. 2015). “Messick opposes the petition and argues that requiring 1 See 12 Del.C. § 901(a). 2 See 12 Del. C.§ 902(a).”

In the Matter of the Est. of Lawrence M. Sullivan, Sr. (Del. Ch. 2022). “45 But the Petitioner argues that 12 Del. C. § 901 leads to the same conclusion—because the right of election does not arise until a spouse’s death, the Petitioner argues her claim did not begin to accrue until the Decedent’s death.”

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