DelawareSB 123153rd General Assembly (2024–2026)Senate

AN ACT TO AMEND TITLE 12 AND TITLE 13 OF THE DELAWARE CODE RELATING TO THE INHERITANCE RIGHTS OF ISSUE AND POSTHUMOUS CHILDREN

Sponsored By: Spiros Mantzavinos (Democratic)

Signed by Governor

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Bill Overview

Analyzed Economic Effects

6 provisions identified: 1 benefits, 1 costs, 4 mixed.

Inheritance protection for children after wills

The law protects a child whose parent becomes their parent after making a will. The child receives the share they would inherit if the parent died without a will. This applies only when neither the will nor another arrangement provides for the child, individually or in a group. It covers both guaranteed gifts and gifts that depend on future events. If the child dies before the parent, the child’s descendants can receive that share. The protection does not apply if the will expressly says later births do not affect it.

Inheritance rights for children born later

For inheritance without a will, a child born after someone’s death can count as living at that person’s death. The child must live at least 120 hours after birth. A pregnancy underway at death qualifies if it results in the child’s birth. For assisted reproduction started after death using the deceased person’s genetic material, additional deadlines apply. The estate’s personal representative must receive notice or know of that intent within 6 months after death. The embryo must be in the womb within 36 months, or the child must be born within 45 months after death. This rule does not apply if it would cause the State to take the estate.

Parentage rules shape who can inherit

For inheritance without a will, parent-child ties follow Delaware’s parentage law and apply to children of any age. Adoption generally makes someone the adopting parent’s child, not the birth parent’s child. Adoption by a birth parent’s spouse preserves the child’s relationship with that birth parent. A child born outside marriage is the mother’s child. The child also qualifies as the father’s child through the parents’ marriage ceremony, even if the marriage was invalid. Paternity can also be established by a court before the father’s death or by evidence showing it is more likely than not afterward. Paternity proved after death lets the father’s family inherit from or through the child only with added safeguards. The father must have openly treated the child as his and not refused support.

Older birth-status inheritance rules are removed

The law repeals three separate inheritance rules based on birth outside marriage. One sent a deceased person’s estate to their mother, or her heirs, when the person left no will or descendants. Another let children born outside marriage, or their descendants, share in their mother’s estate when she left no will. The third gave children whose legal status was changed under the former law equal inheritance rights from their father. These repeals remove those specific legal grounds for inheritance, not necessarily all inheritance rights; other parentage and inheritance rules still apply.

Family definitions guide wills and trusts

Wills, trusts, guardianship accounts, and other governing documents use the law’s definitions of “child” and “parent” unless they say otherwise. The term “issue” means descendants and keeps its family-branch sharing rule: descendants take their deceased ancestor’s share. Adopted people count as descendants of their adopting parent, and their own descendants count through them. These default definitions determine who receives an interest under the document.

Relatives share estates under revised rules

When someone dies without a will, the estate portion not going to a surviving spouse first goes to descendants. If none survive, it goes to the parents equally; if neither survives, it goes to the parents’ descendants. That last category replaces the older wording about siblings and deceased siblings’ descendants. If none qualify, the next of kin and descendants of deceased next of kin inherit. Descendant shares follow family branches, with descendants taking their deceased ancestor’s share. Two or more recipients own the property as tenants in common, each with a separate ownership share. A relative connected through multiple family lines gets only one share—the largest available. For other family lines, that relative and their descendants count as having died before the person whose estate is divided.

Sponsors & Cosponsors

Sponsor

Spiros Mantzavinos
Democratic • Senate

Cosponsors

William Bush
Democratic • House
John "Jack" Walsh
Democratic • Senate

Roll Call Votes

All Roll Calls

Yes: 61 • No: 0

House vote • 6/30/2025

Passed (SM required)

Yes: 40 • No: 0

Senate vote • 6/24/2025