Marital vs. Separate Property in Delaware

By the FigureMyTax Editorial Team · How we calculate

In Delaware, property acquired after the marriage is presumed marital. Qualifying gifts and inheritances, property exchanged for premarital property, property excluded by agreement and the increase in value of premarital property are excluded, but jointly titled real property acquired before the marriage is marital.

The statutory definition

Under 13 Del. C. 1513(b), marital property means all property acquired by either party after the marriage, with these exceptions: qualifying property acquired by bequest, devise or descent or by gift; property acquired in exchange for premarital property; property excluded by valid agreement of the parties; and the increase in value of property acquired before the marriage. All jointly titled real property acquired before the marriage is marital property unless excluded by valid agreement.

Gifts and inheritances

Property acquired by bequest, devise or descent or by gift, including a gift in trust (but not an outright gift between spouses), is excluded if one of the listed conditions applies: it is titled and maintained in the donee spouse’s sole name; it is held in a trust created by another person of which the donee spouse is a beneficiary; a gift tax return reports the transfer in the donee’s sole name or trust; a notarized or other validly executed document shows the nature of the transfer; or it is held in a trust created by a donor spouse of which the donee spouse is a beneficiary, unless the trust says otherwise. A gift from one spouse to the other during the marriage is marital property.

The presumption

Property acquired after the marriage is presumed marital regardless of whether title is held individually or in a co-ownership form. The presumption is overcome by showing that the property was acquired by an excluded method (Section 1513(c)).

Premarital property and its growth

A home or account owned before the marriage stays separate and, unlike in some states, the increase in its value is also excluded. The exception is jointly titled real property acquired before the marriage, which counts as marital property even though it was acquired earlier.

Documents to gather

Keep statements from before the wedding, deeds and closing documents with dates and titles, trust documents, gift tax returns and notarized gift documents, and records that show how an asset is titled and maintained. Because exclusions for gifts and inheritances depend on titling and documentation, the paperwork often decides the outcome.

Keeping the right paperwork

Titling and documentation drive the exclusions for gifts and inheritances, so keep the deed, the trust instrument or the notarized gift document that shows the nature of the transfer. Premarital accounts are easiest to protect if they stay in one name and are not mixed with marital funds.

Where this fits in the calculator

The Delaware property division calculator asks for separate property separately from marital property. The house is covered in the marital home and buyouts.

Frequently asked questions

Official sources

• 13 Del. C. chapter 15: section 1513

This is general information, not legal advice. It is based on the cited Delaware statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Delaware attorney.