Delaware Marital Property Laws
Delaware settles most marital-property arguments with documents rather than with narratives. Section 1513 of Title 13 divides the marital estate equitably and expressly without regard to marital misconduct, but the interesting part is how it decides what belongs in that estate. Real property a couple bought together before the wedding is marital if it is jointly titled. A gift or inheritance stays out of the estate only if one of five specific evidentiary conditions is met — sole-name titling, the right kind of trust, a filed gift tax return, or a notarised instrument executed before or at the time of the transfer. Those are records, not recollections. This page sets out what Delaware’s statute actually requires and where lawful public-records research fits. We are a public-records research firm working under a permissible purpose.. General information about Delaware law, not legal advice.
The Short Version
Delaware is an equitable-distribution state, not a community-property state. Under 13 Del. C. §1513 the Family Court divides marital property in the proportions it deems just after weighing eleven factors, and misconduct is not one of them. Property acquired after the marriage is presumed marital regardless of how title is held, and the presumption falls only by showing the property came in through one of the four routes listed in §1513(b)(1). Two of those routes carry unusual detail: the increase in value of property acquired before the marriage is excluded, and a gift or inheritance is excluded only if one of five stated conditions applies. Then §1513(b)(2) runs the other way and sweeps all jointly-titled real property acquired before the marriage into the marital estate unless an agreement says otherwise. Our part of this is documentary: locating property and entities, pulling how title is actually held, and establishing acquisition dates from the record. Classification and division belong to the Court and to counsel. This page is general information, not legal advice.
A Gift Is Excluded Only If You Can Show It
§1513(b)(1)a lists five ways, and any one is enough.
Most states exclude gifts and inheritances from the marital estate and leave the proof to general principles. Delaware writes the proof into the statute. Property acquired by an individual spouse by bequest, devise, descent or gift — including a gift in trust, but excluding gifts between spouses made outright and free from trust — is non-marital if any one of five conditions is satisfied.
| Condition | What §1513(b)(1)a requires | Where the proof usually lives |
|---|---|---|
| Sole-name titling | The gifted property is titled and maintained in the sole name of the donee spouse. Most common | Recorded deeds, vehicle and vessel title records, entity ownership filings. |
| A third party’s trust | Held in a trust created by another person of which the donee spouse is a beneficiary — regardless of whether others are beneficiaries too. | Trust instruments, probate and estate filings, related entity records. |
| A gift tax return | A gift tax return is filed reporting the transfer in the donee spouse’s sole name, or into such a trust. | The client’s own tax records; not a public record and not something we obtain. |
| A contemporaneous instrument | A notarized or other validly-executed document, executed before or contemporaneously with the transfer, demonstrating the nature of the transfer. | Recorded instruments and their recording dates; otherwise the parties’ own papers. |
| The donor spouse’s trust | Unless the trust instrument expressly provides otherwise, held in a trust created by the donor spouse of which the donee spouse is a beneficiary. | Trust documents and any related recorded conveyances. |
Read that list as an instruction about timing. Three of the five conditions are things that either existed at the moment of transfer or did not — a title in one name, a filed return, a notarised instrument executed before or contemporaneously. None of them can be manufactured later. So the practical question in a Delaware case is often not “was this a gift” but “what was recorded, and when”, and that is answerable. Section 1513(a) then keeps gifts in view even after classification: factor (9) directs the Court to consider whether property was acquired by gift, other than the gifts excluded under (b)(1).
Bought Together Before the Wedding? It Is Marital.
§1513(b)(2) inverts the rule the rest of the country runs on.
Across almost every state, property acquired before the marriage is the textbook example of separate property. Delaware carves a hole in that. Section 1513(b)(2) provides that all jointly-titled real property acquired by the parties prior to their marriage is marital property, unless excluded by valid agreement — and it defines “jointly-titled real property” broadly, to include property held as joint tenants, as tenants in common, and any other form of co-ownership.
The practical reach of that is larger than it first looks. A couple who bought a house together two years before the wedding have marital real estate, whatever either of them paid in and whatever they intended. A couple who bought a rental property together as tenants in common before marrying are in the same position. And because the test is how the deed reads rather than who funded the purchase, the answer is sitting in the county recorder’s records rather than in anyone’s memory. Delaware has three counties — New Castle County, Kent County and Sussex County — and the recorder of deeds in each is where this question is actually settled.
Section 1513(b)(1)d points in the opposite direction and is just as important: the increase in value of property acquired prior to the marriage is excluded from the marital estate. So a pre-marital asset held in one name keeps both its base value and its growth. Delaware sits with Illinois, which likewise treats appreciation of non-marital property as outside the marital estate, and against Pennsylvania, where that growth is marital. Three neighbouring equitable-distribution states, three different answers to the same question — which is exactly why a page that says only “equitable does not mean equal” is useless to anyone actually working a file.
Watch: Delaware Asset Research
Deeds, trusts and the documents section 1513 names.
Watch Overview
The Presumption, and the Trap Inside It
§1513(c) — including what happens to gifts between spouses.
Section 1513(c) presumes that all property acquired after the marriage is marital, regardless of whether title is held individually or in any form of co-ownership, and the presumption is overcome only by showing the property came in through one of the routes in paragraphs (b)(1)a. through d. So far this looks like every other dual-classification state. Then the subsection ends with a sentence that surprises people: “Property transferred by gift from 1 spouse to the other during the marriage is marital property.”
Put that beside the carve-out at the top of (b)(1)a, which excludes from the gift exclusion any gift between spouses made outright and free from trust, and the position is consistent and deliberate. Giving your spouse something during the marriage does not create separate property for them — it creates marital property. A wedding-anniversary transfer of a half interest, a car put in a spouse’s name, an account retitled as a gesture: in Delaware these move value into the marital estate rather than out of it.
Note also §1513(h), which pulls in the other direction for one specific case: a spouse’s beneficial interest in property held in a trust created by another person, where that interest is of the kind described in Title 12 of the Delaware Code, is not property acquired by the spouse at all. Delaware is a major trust jurisdiction, and that provision matters more here than it would elsewhere. What a records search can establish about a trust is limited and we are explicit about the limit: entity and recorded-conveyance records can show a trust holding title to real property or an interest in an entity; the terms of the trust are not a public record and we do not obtain them.
The Eleven Factors in §1513(a)
What the Family Court weighs once classification is settled.
Marriage history
The length of this marriage, and any prior marriage of the party — factors (1) and (2).
Each party’s position
Age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs — factor (3).
Alimony interaction
Whether the property award is in lieu of or in addition to alimony — factor (4), stated as a division factor rather than left implicit.
Contribution and dissipation
What each party added to or took from the acquisition, preservation, depreciation or appreciation of marital property, including contribution as homemaker, husband or wife — factor (6); with future acquisition prospects at (5).
What each side keeps, and the home
The value of property set apart to each party, and economic circumstances when division takes effect, including the desirability of awarding the family home to the party the children will live with — factors (7) and (8).
Gifts, debts and tax
Whether property was acquired by gift other than the excluded gifts, the debts of the parties, and tax consequences — factors (9), (10) and (11).
Two omissions from that list are as telling as its contents. There is no fault factor — §1513(a) says division happens without regard to marital misconduct, which puts Delaware alongside Pennsylvania and Illinois and apart from Maryland, whose monetary-award factors include the circumstances that contributed to the estrangement of the parties. And there is no statutory valuation date; §1513 simply does not fix one, so the record you can produce has to stand on its own dates rather than a date the statute picks for you. That makes acquisition dates and recording dates the spine of a Delaware file. Establishing them is the same work as any careful divorce asset search, applied here to classification rather than to concealment. States as far apart as Nebraska, which classifies marital property on its own terms, show how little the shared label settles.
Liens, Policies, and the Clerk’s Signature
§1513(d) to (g) — the parts that operate after the order.
Subsection (d) lets the Court impose a lien or charge on marital property assigned to a party as security for alimony or another award to the other party. Subsection (e) lets it direct the continued maintenance and beneficiary designations of existing life insurance policies, but only policies originally purchased during the marriage and owned by or within the effective control of either party — a limit worth noting, because a policy bought before the wedding sits outside that power.
Subsection (f) is the one that ends most stalling. The Court may order a party to execute and deliver any deed, document or other paper necessary to effectuate its order; and if that party refuses, the Court may direct the Clerk of the Court to do it instead, with the Clerk’s performance being as effective as the party’s would have been — on top of any sanction for the disobedience itself. A refusal to sign a deed in Delaware buys delay, not leverage.
Subsection (g) covers companion animals, and it is unusually developed. Where a companion animal is marital property the Court shall award ownership and responsibility to one or both parties, and may include responsibility for veterinary or other extraordinary expenses, considering the animal’s well-being: each party’s ability to own, support and care for it, the attachment between them, and the time and effort each spent tending to it during the marriage. If a shared interest is awarded, later disposition is limited to four routes — a joint transfer to a third party, one party irrevocably surrendering their interest in writing, transfer of the whole interest to the survivor on a party’s death, or a petition to the Family Court for sole ownership on a substantial change of circumstances.
What We Do, and What We Will Not Do
Delaware divorce and marital-estate matters.
Family Court Counsel
Title and acquisition-date research
Real Estate Counsel
How a deed is actually held
Entity Analysts
Formation and ownership filings
Mediators
An agreed documentary baseline
Spouses
A picture that can be checked
Trust and Estate Counsel
Bequest, devise and descent tracing
What we produce for a Delaware file is narrow and concrete: recorded real property in New Castle, Kent and Sussex and how it is titled; recorded liens and encumbrances and who holds them; business entities and their formation and amendment filings; registered vehicles and vessels; and the acquisition and recording dates behind each. Where a spouse’s holdings run outside the state, we cover those too. What we do not do is decide anything — whether a gift satisfies one of the five conditions in §1513(b)(1)a, whether an asset is marital, what anything is worth, and how the eleven factors resolve are questions for the Family Court and for counsel and their experts.
We also turn work down. A file opens only on a purpose the law permits, stated first, and it is built out of Delaware’s recorder of deeds books, Prothonotary and Court of Chancery records, Division of Corporations filings and lawfully licensed data. . Two of the five gift conditions rest on documents that are not public at all — a filed gift tax return, a party’s own notarised instrument — and we say so rather than imply we can produce them. And if the real object of a request is a spouse who has gone out of contact after abuse, or a person protected by a Delaware protection from abuse order, we stop there. Their safety is not weighed against a property argument.
Our skip tracing services page sets out the full range, and where a Delaware award later has to be collected rather than divided, that is covered under Delaware judgment collection.
What We Commit To
Delaware decides these questions on documents, so we report documents: what the record says, the date it says it, and where you can look it up yourself. Where the answer lives in a paper that is not public — a trust instrument, a gift tax return — we tell you that instead of guessing. The method has not changed since 2004: a stated lawful purpose, public and licensed records only, no impersonation, no private account contents.
Delaware Marital Property Questions
Is Delaware a community property state?
No. Under 13 Del. C. section 1513(a) the Family Court equitably divides, distributes and assigns marital property in such proportions as it deems just, after considering eleven listed factors, and it does so without regard to marital misconduct. There is no community estate and no automatic halving.
Is a house we bought together before the wedding separate property?
Generally no. Section 1513(b)(2) provides that all jointly-titled real property acquired by the parties before their marriage is marital property unless excluded by a valid agreement, and it defines jointly-titled broadly to include property held as joint tenants, as tenants in common, and any other form of co-ownership. How the deed reads is what decides it.
How do I keep an inheritance out of the marital estate?
Section 1513(b)(1)a excludes property acquired by bequest, devise, descent or gift if any one of five conditions applies: the property is titled and maintained in the donee spouse’s sole name; it is held in a trust created by another person of which that spouse is a beneficiary; a gift tax return is filed reporting the transfer in that spouse’s sole name or into such a trust; a notarized or otherwise validly executed document, executed before or contemporaneously with the transfer, demonstrates its nature; or, unless the trust says otherwise, it is held in a trust created by the donor spouse of which the donee spouse is a beneficiary.
What happens to gifts between spouses?
They become marital property. Section 1513(c) ends with the statement that property transferred by gift from one spouse to the other during the marriage is marital property, and the gift exclusion in section 1513(b)(1)a expressly excludes gifts between spouses made outright and free from trust. Giving your spouse something during the marriage does not create separate property for them.
Is the growth in value of premarital property divided?
Not under the statute. Section 1513(b)(1)d puts the increase in value of property acquired prior to the marriage outside the marital estate, alongside property acquired in exchange for pre-marital property and property excluded by valid agreement. That is the opposite of the position in some neighbouring states, which is why the answer cannot be carried across a state line.
What if one spouse refuses to sign a deed the court ordered?
Section 1513(f) covers it. The Court may order a party to execute and deliver any deed, document or other paper needed to effectuate its order, and if that party fails to do so, the Court may direct the Clerk of the Court to do it instead. The Clerk’s performance is as effective as the party’s would have been, and that is in addition to any sanction for the disobedience.
Does Delaware fix a valuation date?
Section 1513 does not set one. It also contains no commingling or transmutation provision of the kind some states have written into their statutes. What it does specify is the exclusion list in subsection (b) and the presumption in subsection (c), which is why Delaware disputes tend to resolve into documentary questions about title and acquisition dates rather than into tracing formulas.
What can you actually establish, and how quickly?
Land records across New Castle, Kent and Sussex, including the exact form in which title is held; recorded encumbrances and whoever holds them today; entity filings; titled vehicles and vessels; and a date against each. . Workable requests generally get a first read within 24 hours, sourced entry by entry. General information about Delaware law — not legal advice.
Start With the Record
In Delaware the deed and the date usually settle it. Give us the parties, whether the property sits in New Castle, Kent or Sussex, and the lawful purpose behind the request; we will pull what the record actually says, generally with a first read back inside 24 hours. Contact us to begin.
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