Delaware Code
Chapter 29. Apportionment of Estate Taxes [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability]
§ 2903. Apportionment by will or other dispositive instrument [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

(a) Except as otherwise provided in subsection (c) of this section, the following rules apply:

(1) To the extent that a provision of a decedent's will specifically indicates an intent to direct the apportionment of an estate tax, the tax must be apportioned accordingly.
(2) Any portion of an estate tax not apportioned pursuant to paragraph (a)(1) of this section must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which specifically indicates an intent to direct the apportionment of an estate tax. If conflicting apportionment provisions appear in 2 or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this paragraph (a)(2):

a. A trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and
b. The date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.
(3) If any portion of an estate tax is not apportioned pursuant to paragraph (a)(1) or (2) of this section, and a provision in any other dispositive instrument specifically directs that any interest in the property disposed of by the instrument is or is not to be applied to the payment of the estate tax attributable to the interest disposed of by the instrument, the provision controls the apportionment of the tax to that interest.
(b) Subject to subsection (c) of this section, and unless the decedent in a will or revocable trust specifically indicates an intent to waive the application of this statute, the following rules apply:

(1) If an apportionment provision directs that a person receiving an interest in property under an instrument is to be exonerated from the responsibility to pay an estate tax that would otherwise be apportioned to the interest,
a. The tax attributable to the exonerated interest must be apportioned among the other persons receiving interests passing under the instrument, or
b. If the values of the other interests are less than the tax attributable to the exonerated interest, the deficiency must be apportioned ratably among the other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax.
(2) If an apportionment provision directs that an estate tax is to be apportioned to an interest in property a portion of which qualifies for a marital or charitable deduction, the estate tax must first be apportioned ratably among the holders of the portion that does not qualify for a marital or charitable deduction and then apportioned ratably among the holders of the deductible portion to the extent that the value of the nondeductible portion is insufficient.
(3) Except as otherwise provided in paragraph (b)(4) of this section, if an apportionment provision directs that an estate tax be apportioned to property in which 1 or more time-limited interests exist, other than interests in specified property under § 2907 of this title, the tax must be apportioned to the principal of that property, regardless of the deductibility of some of the interests in that property.
(4) If an apportionment provision directs that an estate tax is to be apportioned to the holders of interests in property in which 1 or more time-limited interests exist and a charity has an interest that otherwise qualifies for an estate tax charitable deduction, the tax must first be apportioned, to the extent feasible, to interests in property that have not been distributed to the persons entitled to receive the interests. No tax shall be paid from a charitable remainder annuity trust or a charitable remainder unitrust described in § 664 of the Internal Revenue Code [26 U.S.C. § 664] and created during the decedent's life.
(c) A provision that apportions an estate tax is ineffective to the extent that it increases the tax apportioned to a person having an interest in the gross estate over which the decedent had no power to transfer immediately before the decedent executed the instrument in which the apportionment direction was made. For purposes of this subsection, a testamentary power of appointment is a power to transfer the property that is subject to the power.

Structure Delaware Code

Delaware Code

Title 12 - Decedents' Estates and Fiduciary Relations

Chapter 29. Apportionment of Estate Taxes [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability]

§ 2901. Proration of state and federal estate taxes; method [Effective until Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2902. Duty of executor, administrator or other fiduciary to pay tax before distribution [Effective until Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2903. Recovery of proportionate tax from persons receiving taxable property which did not come into possession of executor or administrator; jurisdiction of Court of Chancery [Effective until Jan. 1, 2014, but see § 2914 of this title for future ap...

§ 2904. Executor's or administrator's obligation to distribute property before person entitled has paid pro rata tax or furnished security [Effective until Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2905. Jurisdiction of and proceedings in the Court of Chancery; petition, order, parties, hearings; appointment of guardians [Effective until Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2906. Limitation on application of chapter [Effective until Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2901. Short title [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2902. Definitions [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2903. Apportionment by will or other dispositive instrument [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

§ 2904. Statutory apportionment of estate taxes [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

§ 2905. Credits and deferrals [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

§ 2906. Insulated property: advancement of tax [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

§ 2907. Apportionment and recapture of special elective benefits [Effective Jan. 1, 2017, but see § 2914 of this title for future applicability].

§ 2908. Securing payment of estate tax from property in possession of fiduciary [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2909. Collection of estate tax by fiduciary [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2910. Right of reimbursement [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2911. Jurisdiction of Court of Chancery; action to determine or enforce chapter [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2912. Uniformity of application and construction [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2913. Severability [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].

§ 2914. Delayed application [Effective Jan. 1, 2014, but see this section for future applicability].

§ 2915. Effective date [Effective Jan. 1, 2014, but see § 2914 of this title for future applicability].