It is common for adults — particularly younger adults — to die without a will. Families often worry that this complicates a wrongful death claim. The reality is that Delaware’s wrongful death statute is structured to function regardless of whether the deceased left a will.
The Detailed Answer
Wrongful Death Recovery
Under 10 Del. C. § 3724, wrongful death damages are paid to the statutory beneficiaries directly based on their proven losses. The statute itself defines who recovers — not the will. Recovery in a wrongful death claim does not generally enter the probate estate or pass under the will (or under intestacy when there is none).
Survival Action Recovery
The survival action under 10 Del. C. § 3701 recovers damages the deceased experienced before death (pain, suffering, medical bills, lost wages from injury to death). This recovery does become part of the probate estate. If there is no will, the funds pass under Delaware’s intestate succession statutes — generally to the spouse and children first, then to parents and siblings.
Who Files When There Is No Will
The Register of Wills in the county where the deceased lived appoints an administrator (rather than an executor) when there is no will. The administrator serves as the personal representative for purposes of filing wrongful death and survival actions.
Estate Creditors
Survival action recoveries can be reached by estate creditors before distribution. Wrongful death recoveries generally are not subject to the deceased’s creditors because they belong to the statutory beneficiaries directly. Some exceptions can apply (for example, certain medical liens).
What This Means for Your Case
Families should not assume that the absence of a will is a barrier to a wrongful death claim. Coordinating with the Register of Wills to appoint an administrator is generally an early step. Joseph M. Jachetti has experience handling Delaware wrongful death matters and can help guide families through the related estate steps. See our wrongful death overview for context.
Related Questions
Q: Who serves as administrator?
The Register of Wills generally appoints a close family member, often the surviving spouse, an adult child, or a parent.
Q: Are family arguments a barrier?
Disputes can complicate the appointment process. The court resolves competing requests under Delaware probate rules.
Q: Does it cost more to administer without a will?
Administrators may need to post bond and follow specific procedures, which can add cost. The wrongful death claim itself can still proceed.
When to Talk to a Delaware Wrongful Death Lawyer
Coordinating estate appointment with the wrongful death claim takes prompt action. A Delaware wrongful death attorney can help align both tracks.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.