Del. C. » Title 12 — Descent and Distribution; Escheat · CHAPTER 9. Elective Share · Decedents’ Estates and Fiduciary Relations

12 Del. C. § 908

Liability for elective share

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(a) The liability for the amount of the elective share shall be apportioned among the recipients of “the decedent’s contributing estate” (as defined in subsection (b) of this section). Such apportionment shall be made in the proportion, as near as may be, that the value of the property of each such recipient bears to the total value of the property received by all such recipients interested in the contributing estate, provided that in any case where a person is given an interest in income or an estate for years, or for life, or other temporary interest in any property, the liability for the elective share on both such temporary interest and on the remainder thereafter shall not be apportioned between or among the recipients of such interest but shall be charged in rem against and paid out of the corpus of such property without apportionment between remainders and temporary estates. Until it is paid or satisfied the surviving spouse’s elective share shall be a proportionate charge against the properties constituting the decedent’s contributing estate based upon the values of all such property for purposes of determining the elective estate. No person or property shall be liable for contribution in any greater amount than the person or such property would have been if relief had been secured against all persons and property subject to contribution.

(b) For purposes of this section, the decedent’s contributing estate consists of only that portion of the elective estate of which the decedent was the sole owner at death and which was not transferred or deemed transferred to a surviving spouse by the decedent as described in § 903(1) of this title. The decedent’s contributing estate does not include any jointly owned property with the right of survivorship of which the decedent was a joint owner, any insurance proceeds which are payable to a beneficiary other than to the estate, or any property held in trust.

(c) A recipient of property comprising part of the contributing estate may pay a proportionate elective share liability with respect to such property or may choose to give up such property, thereby relieving personal liability. If a recipient elects to give up such property the recipient shall be entitled to any value realized upon the sale or other disposition of such property in excess of the recipient’s proportionate elective share liability.

59 Del. Laws, c. 384, §  1;  67 Del. Laws, c. 240, §  8;  70 Del. Laws, c. 186, §  1; 

Notes of Decisions
Cited in 3 cases, 1957–2018 · leading case: In Re Estate of Bernstein
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In Re Estate of Bernstein (2011) delch · cites it 2× “” 56 The Master based her ruling on 12 Del. C. § 908, aptly entitled “Liability for elective share.”
Walter v. Walter (1957) delch · cites it 3× “The first statute is 12 Del.C. § 908, which provides as follows: "Forfeiture of dower and other benefits If a wife willingly leaves her husband and goes with an adulterer, or willingly lives in adultery in a state of separation from her husband not occasioned by his fault, in…”
Nataliya v. Wolhar v. Carolyn Wolhar, of the Estate of Kenneth R. Wolhar (2018) delch “28 12 Del. C. § 908(a). Page 16 of 29 one-third of the estate’s value into an escrow account,29 post bond, file lis pendens, and give her a Form 706 tax return to facilitate elective share calculations), is greater than the injury to Carolyn if she is required to take those acts.”
— 12 Del. C. § 908(a) — 1 case
Nataliya v. Wolhar v. Carolyn Wolhar, of the Estate of Kenneth R. Wolhar (2018) delch “28 12 Del. C. § 908(a). Page 16 of 29 one-third of the estate’s value into an escrow account,29 post bond, file lis pendens, and give her a Form 706 tax return to facilitate elective share calculations), is greater than the injury to Carolyn if she is required to take those acts.”
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