Demand for Surviving Spouse's Allowance (Delaware)

DEMAND FOR SURVIVING SPOUSE'S ALLOWANCE

COURT OF CHANCERY OF THE STATE OF DELAWARE
REGISTER OF WILLS, [COUNTY] COUNTY

CAPTION

Estate / File Number: [____________________________________]
County in which Letters were granted: [____________] County, Delaware

1. CLAIMANT (SURVIVING SPOUSE) INFORMATION

Surviving Spouse Name: [SURVIVING SPOUSE FULL LEGAL NAME]
Address: [STREET ADDRESS], [CITY], Delaware [ZIP CODE]
Telephone: [________________________________] Email: [________________________________]
Date of Marriage to Decedent: [__/__/____]

2. DECEDENT INFORMATION

3. STATUTORY ENTITLEMENT (12 Del. C. § 2308)

3.1 Under 12 Del. C. § 2308(a), the surviving spouse of any decedent is entitled to receive, and the executor or administrator shall pay to such spouse as soon as convenient, cash up to the amount of $7,500 out of the estate of the Decedent. That payment is made in the order of preference of claims against the estate set forth in 12 Del. C. § 2105.

3.2 The allowance does not affect any other rights to which the surviving spouse may be entitled under the will of the Decedent or under the intestacy laws of Delaware.

3.3 Written Demand Required — § 2308(b). The allowance is of no effect unless and until the surviving spouse notifies, in writing, the Register of Wills of the county where letters were granted and the executor or administrator, demanding that a specific sum (not exceeding $7,500) be set aside out of the proceeds of the estate. This demand must be made within the shorter of:
(a) nine (9) months from the Decedent's date of death; or
(b) six (6) months from the date letters testamentary or of administration were granted.

3.4 Treated as a Debt — § 2308(c). The allowance is considered a debt of the estate, and the executor or administrator may sell so much of the Decedent's property as is necessary to pay it, in the same manner provided by law for payment of other debts of the Decedent or the estate.

4. AMOUNT DEMANDED

The surviving spouse hereby demands that the following specific sum (not exceeding $7,500) be set aside and paid from the proceeds of the estate:

☐ The amount demanded does not exceed the $7,500 statutory maximum.

5. TIMELINESS OF DEMAND

☐ This written demand is made on or before the controlling deadline and is therefore timely under 12 Del. C. § 2308(b).

6. PRIORITY / PAYMENT

6.1 The surviving spouse's allowance is paid in the order of preference of claims against the estate under 12 Del. C. § 2105 and is treated as a debt of the estate under § 2308(c).

6.2 The executor or administrator may sell estate property as necessary to satisfy the allowance, in the same manner as for other debts of the Decedent or the estate.

7. PRAYER / DEMAND FOR RELIEF

WHEREFORE, the surviving spouse respectfully demands that:

a. The Register of Wills and the executor/administrator set aside the sum of $[________________] (not exceeding $7,500) as the surviving spouse's allowance under 12 Del. C. § 2308;

b. The executor or administrator pay that sum to the surviving spouse as soon as convenient, in the order of preference of claims under 12 Del. C. § 2105; and

c. Such other relief as may be appropriate under the law of Delaware.

8. VERIFICATION

I, [SURVIVING SPOUSE FULL LEGAL NAME], the surviving spouse of the Decedent, declare under penalty of perjury under the laws of the State of Delaware that I have read the foregoing Demand and that the matters stated in it are true and correct to the best of my knowledge, information, and belief.

Executed on [__/__/____] at [CITY], Delaware.

Surviving Spouse Signature: ______________________________________

Printed Name: [SURVIVING SPOUSE FULL LEGAL NAME]

9. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of this written Demand was served on the following, as required by 12 Del. C. § 2308(b), by the method indicated:

Signature: ______________________________________
Printed Name: [SURVIVING SPOUSE / ATTORNEY NAME]
Delaware Bar ID No.: [________________] (if applicable)
Address: [________________________________]
Telephone: [________________________________] Email: [________________________________]

ATTACHMENTS CHECKLIST:

☐ Certified copy of Death Certificate
☐ Proof of marriage to the Decedent (marriage certificate)
☐ Copy of Letters Testamentary / of Administration (showing date granted)
☐ Proof of service on the Register of Wills and on the executor/administrator
☐ Copy of will (if testate)
☐ Receipt/acknowledgment from Register of Wills (after filing)