Delaware law, for title research

Is Delaware a community property state? No: equitable division of marital property and a one-third elective share

Every rule below is quoted from the Delaware Code or another official source, linked and checked on the date shown. General information, not legal advice.

How does Delaware classify a married couple's property?

Not as community property. IRS Publication 555 lists nine community property states, and Delaware is not among them. Delaware uses the term marital property, but Title 13, section 1513(b) defines it for purposes of that chapter only, and the definition does its work in a divorce or annulment. Title 13, section 214 includes a party to a civil union in terms such as spouse and tenants by the entirety, and section 129 is headed equal treatment of marital relationships.

We searched Titles 12, 13 and 25 for the phrase community property. Title 13 and Title 25 had no hits. Title 12 had two: section 903, which counts the value of the survivor's share from rights in community property owned by the decedent in this or any other state, and a beneficiary registration section that mentions owners of community property held in survivorship form. We did not search the other titles.

How is property divided in a Delaware divorce?

Equitably, in the proportions the court deems just. Section 1513(a) has the court, on request of either party, equitably divide, distribute and assign the marital property without regard to marital misconduct, after considering all relevant factors. Those it lists are the length of the marriage, any prior marriage, each party's age, health, income, skills, employability, estate, liabilities and needs, whether the award is in lieu of or in addition to alimony, opportunity for future acquisitions, contribution or dissipation including as homemaker, the value of property set apart to each party, economic circumstances including the desirability of awarding the family home to the party with whom children will live, whether property was acquired by gift, debts and tax consequences.

Under section 1513(b), marital property is all property acquired by either party after the marriage, with listed exceptions, plus all jointly titled real property the parties acquired before the marriage, unless excluded by valid agreement. Section 1513(c) presumes property acquired after the marriage to be marital, whether title is held individually or in co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. A showing of a listed method of acquisition overcomes the presumption.

The exceptions are property acquired in exchange for property acquired before the marriage, property excluded by valid agreement, the increase in value of property acquired before the marriage, and property acquired by bequest, devise, descent or gift if a listed condition applies. Those conditions include being titled and maintained in the donee spouse's sole name, being held in a trust created by another person for the donee, a filed gift tax return, or a notarized or otherwise valid document made before or with the transfer. Gifts between spouses made outright and free from trust fall outside the exception, and section 1513(c) makes a gift from one spouse to the other during the marriage marital property. The conditions also cover a trust created by a donor spouse with the donee as a beneficiary, unless the trust instrument expressly provides otherwise. Section 1513(h) says a spouse's beneficial interest in a trust created by another person, of the kind described in section 3315(b) of Title 12, is not property acquired by the spouse.

The court may impose a lien or charge on marital property assigned to a party, as security for alimony or another allowance or award, under section 1513(d). Section 1513(f) lets it order a party to execute a deed or other paper needed for its order. If the party fails to do so, it may direct the clerk to do it, and that performance is as effective as the party's would have been.

Can a Delaware spouse sell land during a divorce?

Not freely. Section 1509(a) says that on the filing of a petition for divorce or annulment, a preliminary injunction shall be issued against both parties, enjoining them from transferring, encumbering, concealing or in any way disposing of any property, except in the usual course of business or for the necessities of life. They must also notify the other of proposed extraordinary expenditures and account to the court for them. It takes effect against the petitioner on filing, and against the respondent on the first of service of the petition, an entry of appearance, a responsive pleading, or another written acknowledgment of the filing.

The section does not address what happens to a deed given to a buyer in violation. It does address death. A party may take action affecting the disposition of property at death on written notice to the other party, but if that party dies before a final decree, an action taken after the injunction issued is voidable, to the extent a court deems appropriate, unless the parties agreed otherwise in writing. If a party dies between the final decree and the end of ancillary issues, rebuttable presumptions favor the former spouse for marital property and the third-party claimant, payee or beneficiary for other property. Either party may also move for an interim order restraining transfers under section 1509(b)(2), and section 1509(c) allows that without notice only on a finding of irreparable injury.

Third parties are a separate question. Title 25, chapter 16 governs notice to them. Section 1601 lets a party asserting a claim to affect title file a written notice of pendency with the recorder of deeds, and section 1603(a) makes recording notice to anyone acquiring an interest from or through a named party, who is bound by later proceedings. Section 1603(b) says that unless and until a notice is filed, no action is deemed constructive notice, before final judgment, to a person acquiring a lien or other interest. Section 1614 abolishes the common-law doctrine of lis pendens, and section 1604 gives a notice a term of 3 years, subject to the section's extensions.

Does a spouse have to sign a Delaware deed?

The sections we read in Titles 12, 13 and 25 do not state a general rule that a spouse off title must sign. Section 102 of Title 25 says a married woman's deed is valid as if she were sole, if she acknowledges it, that it binds her only to a special warranty, and that it does not interfere with the husband's estate by the curtesy, should such an estate attach. Section 511 of Title 12 abolishes the estates of dower and curtesy. Title 25 still has older sections that speak of those rights, including section 131, which says no right of dower or curtesy is barred or released unless the person who would have it signed and acknowledged the instrument, sections 104 to 106 on trustees for a spouse with a mental disability, and section 310 on releases. Section 107 lets a married woman abandoned without just cause dispose of her own real estate as effectually as if single, and a deed executed as section 124 provides and recorded in the county is as effectual. Section 2104 says a husband need not be a party to, or consent to, a married woman's purchase money mortgage. Title 13, section 311 also mentions curtesy. We have not resolved how those older sections interact with the abolition in section 511, and a Delaware attorney should answer that for a given deed.

A spouse on title is a different matter. Section 309(a) of Title 25 lists valid conveyances between spouses. Either spouse, without the other's joinder, may convey in any estate or tenancy other than tenancy by the entirety to both spouses or to the other alone, and may convey that spouse's entire interest in entirety property to the other alone. Both spouses may convey to both or to either alone. Section 309(d) deems those conveyances valid from the start, whether made before, on or after June 29, 2023.

What does a deed to spouses create in Delaware?

Read the words. Section 309(b) says a conveyance the section authorizes to both spouses, as joint tenants with right of survivorship or as tenants by the entirety, is as effective to vest that estate as if conveyed to a third party and then to the grantees. Section 311 does the same for a grantor conveying to the grantor and others, as joint tenants with right of survivorship or as tenants in common. Section 701 says no joint tenancy is held or claimed under a grant, devise or conveyance, other than to executors or trustees, unless the premises are expressly granted to be held as joint tenants and not as tenants in common. These sections do not state a default estate for a deed to a married couple that names none.

Under section 309(c), property held by the entireties is not subject to the claims of a creditor of only one spouse. For recording, section 153 gives a deed priority from the time it is recorded in the proper office, without respect to when it was signed, sealed and delivered, and section 152 limits a recording to land in that county.

What does a surviving spouse take at death?

Without a will, section 502 of Title 12 gives the entire intestate estate if no issue or parent survives. If no issue survive but a parent does, or if all surviving issue are also the spouse's, it gives the first $50,000 of the intestate personal estate, half of the balance of that estate, and a life estate in the intestate real estate. If any surviving issue is not the spouse's, it gives half of the intestate personal estate and a life estate in the intestate real estate.

A surviving spouse of a married person domiciled in Delaware may also elect under section 901 an amount equal to one third of the elective estate, less all transfers to the survivor by the decedent. Section 902 starts from the decedent's gross estate for federal estate tax purposes, whether or not a return is filed, less listed deductions, and includes one half of property held with the survivor as tenants by the entirety, or as sole joint tenants with survivorship. Section 901(b) says that in determining the share, and for a married person not domiciled in the state, the law of the situs governs the right, if any, to an elective share in real or tangible personal property. Section 906 calls for a petition to the Court of Chancery within six months after the grant of letters, unless the court extends the time for cause before it expires. Section 905 allows a signed written waiver, before or after marriage. Separately, section 321 gives a surviving spouse, where a will made before the marriage made no provision for that spouse by will or otherwise, the same part as if the testator had died intestate, and section 322 addresses contribution by devisees.

Section 908 charges the share to the contributing estate, which is property the decedent solely owned at death and did not transfer to the spouse. It excludes jointly owned survivorship property, insurance payable to a beneficiary other than the estate, and property in trust. Until paid, the share is a proportionate charge on those properties. A recipient may pay the share or give the property up. Section 906(f) lets the Court of Chancery restrain a transfer, and section 906(g) protects a transferee or lienholder of such real property who gave bona fide consideration to the recipient, unless a court-attested copy of a Court of Chancery judgment, order or decree saying otherwise was recorded in that county before the transfer's instrument.

Section 209 of Title 12 revokes dispositions by will to a former spouse on divorce or annulment, unless the will expressly provides otherwise, and a separation decree that does not end the status of husband and wife is not a divorce for that section. For a transfer on death deed, section 215 of Title 25 lets the estate reach the transferred property if the probate estate cannot satisfy an allowed claim or a statutory allowance to a surviving spouse or child, with a proceeding within eight months after death. Section 213(c) says that if a transferor who is a joint owner is survived by another joint owner, including a tenant by the entirety, the property belongs to the survivor despite such a deed. Section 1905(e) of Title 12 calls for an affidavit with the Register of Wills within three months after death, when real property passes by survivorship or tenancy by the entireties.

What a title search checks on a married Delaware owner

Start with the granting clause, since Title 25, section 701 requires express joint tenancy words. Then note marital status on each deed, whether both spouses joined a conveyance of entirety property, and whether an older deed has a release under the Title 25 sections on dower and curtesy. Priority under section 153 runs from recording.

Section 1509 binds the parties to a divorce, and it reaches a respondent only from service or a similar event. Title 25, section 1603(b) says an action is not constructive notice before final judgment unless a notice of pendency is filed, so look for that notice. A court order, a lien under section 1513(d) or a clerk's deed under section 1513(f) can change the picture. Where an owner has died, the search also looks for an elective share order recorded under section 906(g) of Title 12, and for a survivorship affidavit under section 1905(e) of that title. Whether a given transfer stands is a legal question for a Delaware attorney, and the report shows the record it turns on.

The Delaware marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Title 13, section 1513; Title 13, section 1509; Title 25, section 1603; Title 25, section 309; Title 25, section 311; Title 25, section 701; Title 12, section 511; Title 25, section 131; Title 25, section 102; Title 25, section 153; Title 12, section 502; Title 12, section 901; Title 12, section 902; Title 12, section 906; Title 12, section 905; Title 12, section 908; Title 25, section 213; Title 12, section 1905; Title 12, section 209; Title 12, section 903; Title 25, section 215. Each row links the section it summarizes.

Questions people ask

More on how Delaware property law shapes a title search: title research in Delaware.