Will requirements in Delaware

Who can make a will in Delaware

Delaware asks for two things: that you are at least 18, and that you are, in the state’s own statutory language, “of sound and disposing mind and memory” when you sign. That phrase is Delaware’s way of stating the same practical test every state applies in different words: you understand what you own, who your close family is, and that the document in front of you is the one that decides where your things go. Nothing in the statute demands a doctor’s letter or a court hearing to prove it; the standard is applied at the moment of signing, and it is a low bar for anyone capable of managing their own affairs day to day.

Signing your will in Delaware

1. 1You sign

   You sign the will, or someone signs your name for you, in your presence and at your direction.

2. 2Two witnesses sign

   Two credible witnesses sign in your presence, after watching you sign or acknowledge the will as your own. Delaware does not throw out a witness for also inheriting under the will, though naming someone who receives nothing keeps every gift furthest from a later question.

Delaware keeps the affidavit a separate stop

A notary plays no part in the signing itself. Delaware’s notary shows up only afterward, for the self-proving affidavit: you and your two witnesses go before a notary (or any officer authorized to take oaths in Delaware) and swear that the signing happened the way the will says it did. That sworn certificate then gets attached to the will, and its purpose is narrow but useful: without it, the court has to track down a witness to testify that the signing was real before it will accept the will; with it, the certificate speaks for the witnesses on its own. Skipping this step does not make your will invalid. It just means more work for whoever is left to prove it.

Delaware also does not disqualify a witness simply for standing to inherit under the will they just watched you sign. That is a permissive rule, not an instruction. A witness who receives nothing under the will leaves no room for anyone to later argue the signing was tainted by self-interest, so choosing two disinterested adults is still the safer practice even though the statute would let you do otherwise.

Handwritten and electronic wills

Delaware does not recognize a will you simply write out and sign in your own hand, with no witnesses. The two-witness rule applies to every will regardless of how it was written, and the state has carved out no separate lane for a handwritten one. A document that skips the witnesses because it looks complete enough on its own is not a will in Delaware’s eyes, whatever it says and however clearly it says it. Nor has Delaware authorized electronic wills: there is no statute letting you sign a will on a screen or have it witnessed remotely, so the document a Delaware probate court will accept is a paper one, signed in ink. That is exactly the route Myend’s Last Will takes everywhere, including here: you build the will online, then print it and sign it on paper with two witnesses, the form every state, Delaware included, already knows how to honor.

Property and your spouse

Delaware is a common-law property state: what is titled in your name alone is generally yours to leave as you choose. Nothing about a Delaware marriage automatically hands a spouse half of what you earned along the way, the way it would in a community property state such as Texas or California. But your will still cannot fully write a spouse out of your estate. Delaware law gives a surviving spouse a right of election, a claim to a fixed one third of what the statute calls the “elective estate,” regardless of what your will actually says (12 Del. C. § 901).

What makes Delaware genuinely unusual is how that one third gets measured. Most states that protect a spouse this way build their own state-law formula for what counts, an “augmented estate” assembled from a list of state-defined categories. Delaware skips that invention and borrows a federal one instead: the elective estate is defined as the amount of your gross estate for federal estate tax purposes, the same figure that would appear on a federal estate tax return, reduced by certain deductions the federal tax code already allows, roughly your debts, funeral costs, and the expense of settling the estate, plus any casualty or theft loss the estate suffers while it is being administered (12 Del. C. § 902). Then the statute subtracts the value of whatever you already left the spouse outright, since that portion needs no election to reach them.

Read that carefully before you worry about it: this is a measuring stick, not a tax bill. The great majority of estates never come close to owing federal estate tax at all, and using the federal definition here does not change that. Delaware is simply reaching for a ready-made, well-litigated federal yardstick to answer a state-law question, rather than writing a new one from scratch. A spouse who wants the share does not get it automatically. They have to file the election themselves, in the Court of Chancery, within six months after letters testamentary or letters of administration are granted, and the court can extend that window only for cause shown before it runs out (12 Del. C. § 906).

Your executor

Delaware calls the person who carries out your will the executor, and you can name almost any capable adult for the role. Delaware’s rule generally asks a nondomiciliary executor, someone who does not live in the state, or a non-Delaware corporation, to file an irrevocable power of attorney with the Register of Wills before letters issue, naming that office as the person authorized to accept legal papers on their behalf (12 Del. C. § 1506). In practice that means an out-of-state executor can usually still serve; they file one extra document rather than being turned away. The filing has to happen before letters testamentary are granted, not afterward, so it is worth telling an out-of-state executor about this step well before they are ever called on to use it. If the role is new to you, start with what an executor actually does.

If someone challenges the will

Delaware generally enforces a no-contest clause written into a will, though the statute carves out exceptions of its own rather than enforcing every such clause exactly as written (12 Del. C. § 3329).

If you do not make a will

Without a will, Delaware’s intestacy statute decides who inherits, working through a fixed order of relatives rather than asking what you actually wanted. Every Delaware county, New Castle, Kent, and Sussex, keeps its own Register of Wills office, and that is where an estate gets opened whether or not a will exists; a will does not change which office handles things, only what happens once the file lands on the desk. For blended families, unmarried partners, and close friends who function as family without the legal paperwork to prove it, the state’s default order routinely leaves them out entirely. A valid will is how you replace that default with your own decisions. See what happens if you die without a will.

What is different about Delaware

Delaware measures a spouse’s protected share the same way the federal government measures your estate for a tax return only the largest estates ever have to file.

Every state that guarantees a surviving spouse a share of the estate has to define, somewhere, exactly what that share is a fraction of. Most build the definition themselves: a state statute lists which lifetime gifts count, which trusts count, which jointly held assets count, and assembles an “augmented estate” out of those state-specific ingredients. Delaware takes a different route entirely. It reaches past its own probate code and borrows the federal government’s own definition of a gross estate, the same base a federal estate tax return would use, then trims it by the deductions federal law already allows and by whatever the spouse already received directly. The result is a one-third share resting on a foundation almost no other state in this dataset shares.

That choice fits a state whose courts are already unusually well known outside probate law. The claim itself gets filed in the Court of Chancery, the same court most people associate with Delaware corporate litigation rather than family estates. Chancery hears the spousal election the way it hears a shareholder dispute: as a matter of equity, decided by a judge rather than a jury, on a fixed six-month clock that rewards a spouse who acts promptly and offers little patience for one who waits.

Put the two facts together and Delaware reads less like a state that improvised its spousal protection and more like one that reused tools it already trusted: a federal accounting concept for the measuring, and a specialized court for the deciding. Nothing about the will itself is unusual. What is unusual is what happens if a spouse decides the will was not enough.

Common questions

Sources and review