TITLE 30

State Taxes

Income, Inheritance and Estate Taxes

CHAPTER 15. ESTATE TAX


As used in this chapter,

(1) "Delaware taxable estate" shall mean the modified federal taxable estate of the decedent, reduced, but not below zero, by the exemption amount.

(2) "Estate tax" shall mean the tax imposed under this chapter.

(3) "Exemption amount" shall mean:

a. If the date of the decedent's death is after June 30, 2009, and before January 1, 2010, $3,500,000;

b. If the date of the decedent's death is after December 31, 2009, and before January 1, 2011:

1. If the decedent's personal representative has made an election in accordance with federal law to apply the Internal Revenue Code as though the amendments made by § 301(a) of The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub. L. No. 111-312, 124 Stat. 3296, do not apply with respect to Chapter 11 of the Internal Revenue Code [26 U.S.C. Chapter 11] and with respect to property acquired or passing from such decedent (within the meaning of § 1014(b) of the Internal Revenue Code) [26 U.S.C. § 1014(b)], $3,500,000; or

2. In all other cases, $5,000,000.

c. If the date of the decedent's death is after December 31, 2010, the applicable exclusion amount set forth in § 2010(c) of the Internal Revenue Code (26 U.S.C. § 2010(c)) as in effect on the date of the decedent's death.

(4) "Modified federal taxable estate of the decedent" shall mean the federal taxable estate of the decedent calculated under the provisions of the federal estate tax laws as in effect on the date of the decedent's death,

a. Increased by the amount of any deduction for state death taxes included in calculating the federal taxable estate under § 2058 of the Internal Revenue Code (26 U.S.C. § 2058), or any successor provision thereto;

b. Increased by the value of property, if any remains as of the decedent's date of death, for which a marital deduction qualified terminable interest property election was made for the decedent's predeceased spouse on a timely-filed Delaware estate tax return, to the extent such property was not included in the federal taxable estate;

c. Decreased by the value of agricultural land, and agricultural buildings on such land, enrolled in farmland assessment or farmland preservation programs, to the extent such property was included in the federal taxable estate; and

d. Decreased by the value of any interest in property which passes or has passed from the decedent to the decedent's surviving spouse pursuant to a written irrevocable election to treat property as marital deduction qualified terminable interest property made by the decedent's personal representative and submitted with or on a timely-filed Delaware estate tax return, regardless of whether such an election was made for such decedent for federal estate tax purposes, which shall be deemed to be an election as required by § 2056(b)(7)(B)(i), (iii), and (v) of the Internal Revenue Code (26 U.S.C. § 2056(7)(B)(i), (iii) and (v)), to the extent such interest was included in the federal taxable estate.

(5) "Personal representative" shall mean any executor or administrator of the decedent and, with respect to property which is included in the gross estate for federal estate tax purposes and which is not in the possession or control of the personal representative, any person in possession of such property.

(6) "State," except where the context otherwise indicates, shall mean this State or any other state of the United States or the District of Columbia.

71 Del. Laws, c. 353, § 18; 77 Del. Laws, c. 85, § 1; 79 Del. Laws, c. 11, § 1; 79 Del. Laws, c. 162, § 1.;

(a) Imposition of tax. — A tax is imposed upon the transfer of the property of every decedent who was a resident of this State at the time of death.

(b) Amount of tax; decedents dying before July 1, 2009. — Except as provided in § 1503 of this title, the amount of the tax shall be the amount of credit allowable under the provisions of the federal estate tax laws for estate, inheritance, legacy and succession taxes paid to any state.

(c) Amount of tax; decedents dying after June 30, 2009. — Except as provided in § 1503 of this title, the amount of the tax shall be determined pursuant to the table set forth below:

If the Delaware taxable estate is The tax shall equal the sum of the figures calculated pursuant to columns (C) and (D)
Over (A) But not over (B) Tax on lower amount (C) Plus this % of the excess amount (D)
$0 $40,000 $0 0
$40,000 $90,000 $0 0.8
$90,000 $140,000 $400 1.6
$140,000 $240,000 $1,200 2.4
$240,000 $440,000 $3,600 3.2
$440,000 $640,000 $10,000 4.0
$640,000 $840,000 $18,000 4.8
$840,000 $1,040,000 $27,600 5.6
$1,040,000 $1,540,000 $38,800 6.4
$1,540,000 $2,040,000 $70,800 7.2
$2,040,000 $2,540,000 $106,800 8.0
$2,540,000 $3,040,000 $146,800 8.8
$3,040,000 $3,540,000 $190,800 9.6
$3,540,000 $4,040,000 $238,800 10.4
$4,040,000 $5,040,000 $290,800 11.2
$5,040,000 $6,040,000 $402,800 12.0
$6,040,000 $7,040,000 $522,800 12.8
$7,040,000 $8,040,000 $650,800 13.6
$8,040,000 $9,040,000 $786,800 14.4
$9,040,000 $10,040,000 $930,800 15.2
$10,040,000   $1,082,800 16.0

71 Del. Laws, c. 353, § 19; 77 Del. Laws, c. 85, §§ 2, 3; 79 Del. Laws, c. 11, § 1; 79 Del. Laws, c. 162, § 1.;

(a) Subject to subsection (b) of this section, the Delaware taxable estate of every decedent who was a resident of this State at the time of death shall be allowed a credit against the estate tax otherwise due under this chapter for the aggregate amount of all estate, inheritance, legacy and succession taxes actually paid to any other state with respect to any property owned by such decedent or subject to such taxes as part of or in connection with the estate and for which a credit or deduction for such taxes paid to any other state was allowable under the federal estate tax laws in effect as of the decedent's date of death.

(b) The credit allowed under subsection (a) of this section above for taxes paid to any other state shall be limited to that amount which does not reduce the estate tax due under this chapter to an amount less than the estate tax otherwise due under this chapter notwithstanding this section, multiplied by a fraction:

(1) The numerator of which is the value of that part of the decedent's federal taxable estate consisting of real and tangible personal property located in this State plus all intangible personal property; and

(2) The denominator of which is the value of the decedent's federal taxable estate, excluding real and tangible personal property not located in any state.

71 Del. Laws, c. 353, § 20; 72 Del. Laws, c. 104, § 6; 79 Del. Laws, c. 162, § 1.;

(a) Imposition of tax. — Subject to subsections (b) and (c) of this section, a tax is imposed upon the transfer of the estate of every decedent who, at the time of death, was a nonresident of this State and owned real or tangible personal property situated in this State which was taxable under the provisions of Chapter 11 of the Internal Revenue Code (26 U.S.C. Chapter 11) as it was in effect on the decedent's date of death.

(b) Amount of tax. — The amount of the tax shall be computed in the same manner as provided in § 1502 of this title, the result of which is then multiplied by a fraction:

(1) The numerator of which is the value of that part of the decedent's federal taxable estate consisting of real and tangible personal property located in this State, and

(2) The denominator of which is the value of the decedent's federal taxable estate, excluding real and tangible personal property not located in any state.

71 Del. Laws, c. 353, § 21; 77 Del. Laws, c. 85, § 4; 79 Del. Laws, c. 11, § 1; 79 Del. Laws, c. 162, § 1.;

(a) Duty to file return. — The personal representative shall have a duty to file an estate tax return with this State in all cases when a representative for the estate of a resident decedent, or a representative for the estate of a nonresident decedent having real or tangible personal property located in this State which is included in the value of the decedent's Delaware taxable estate, is required to file a federal estate tax return under the provisions of the Internal Revenue Code in effect as of the decedent's date of death.

(b) Time to file return. — The estate tax returns required by this chapter shall be filed within 9 months after the date of the decedent's death.

(c) Time and place for payment of tax. — The personal representative shall, without assessment, notice or demand, pay any tax due thereon to the Division of Revenue on or before the date fixed for filing the return. The Director of Revenue shall prescribe the place for filing any return, declaration, statement or other document required pursuant to this chapter and for the payment of any tax.

71 Del. Laws, c. 353, § 22; 75 Del. Laws, c. 198, § 1; 77 Del. Laws, c. 85, § 5; 79 Del. Laws, c. 11, § 1; 79 Del. Laws, c. 162, § 1.;

(a) The personal representative shall pay to the Department of Finance the full amount of the Delaware estate tax when the same is due, out of any moneys belonging to such estate in the personal representative's hands.

(b) The personal representative shall have the same powers and duties in respect to the raising of funds for the payment of such tax as conferred upon an executor under §§ 2205, 2206, 2207A and 2207B of the Internal Revenue Code [26 U.S.C. §§ 2205, 2206, 2207A and 2207B], and pursuant to the laws of this State in the case of raising funds for the payment of a decedent's debts generally. Any provision in a decedent's will (or revocable trust) in which a decedent effectively waives a right of recovery under a section of the Internal Revenue Code referred to in the preceding sentence shall be deemed a waiver of the corresponding right of recovery under this section, unless the will or revocable trust specifically states otherwise.

(c) Every personal representative of a decedent's estate or any part thereof which is taxable under this chapter is personally liable for the payment of the estate tax. In addition to personal liability for payment of the estate tax, any personal representative failing to perform the duties under this chapter shall forfeit any right to commissions for settling the estate of the decedent.

71 Del. Laws, c. 353, § 23; 70 Del. Laws, c. 186, § 1.;

(a) Assessment. — Notwithstanding the provisions of § 530 of this title, the tax due pursuant to this chapter shall be deemed assessed on the date of filing the Delaware estate tax return or the due date of the federal estate tax return for the decedent, whichever is earlier.

(b) Special lien for estate taxes. — The tax imposed by this chapter shall be a special lien upon the gross estate of a resident decedent and upon the real and tangible personal property of a nonresident decedent situated in this State at the time of the decedent's death for 10 years from the date of death. Any property for which a marital or charitable deduction was allowed for federal estate tax purposes shall be exempt from the lien provided by this subsection.

(c) Extinguishment of lien. — Notwithstanding the foregoing, the special lien shall be extinguished:

(1) Pursuant to § 555 of this title as to such part of the gross estate sold for the payment of charges against the estate and expenses of its administration,

(2) Upon filing with the register of wills of the county in which the decedent resided and in which the decedent owned real property of 1 of the 2 following certificates:

a. Of the Director of Revenue that the estate tax return has been filed and the correct tax has been paid, pursuant to § 2304(a) of Title 12, or

b. That no estate tax return or tax was due, pursuant to § 2304(b) of Title 12.

(d) [Repealed.]

71 Del. Laws, c. 353, § 25; 75 Del. Laws, c. 198, § 2; 77 Del. Laws, c. 85, § 6; 79 Del. Laws, c. 11, § 1; 79 Del. Laws, c. 162, § 1.;

Repealed by 71 Del. Laws, c. 353, § 24, effective Jan. 1, 1999.;

Repealed by 68 Del. Laws, c. 187, § 11, effective Aug. 9, 1991.;