Delaware Code
Chapter 9. ELECTIVE SHARE
§ 902. Elective estate defined.

(a) The elective estate means the amount of the decedent's gross estate for federal estate tax purposes, regardless of whether or not a federal estate tax return is filed for the decedent, modified as follows:

(1) Less those deductions allowable under §§ 2053 and 2054 of the Internal Revenue Code of 1986, as amended [26 U.S.C. §§ 2053 and 2054], or the comparable provisions of any later law (“the Code”); and
(2) The extent of the inclusion in the decedent's gross estate for federal estate tax purposes of certain joint interests of the decedent and the surviving spouse under § 2040(b) of the Code [26 U.S.C. § 2040(b)] shall be modified as follows:

a. Tenants by the entirety, or
b. Joint tenants with right of survivorship, but only if the decedent and the surviving spouse are the only joint tenants.
(b) For purposes of this chapter, if the federal estate tax is not applicable, because of its permanent or temporary repeal, to the estates of persons dying on the date of the decedent's death, any reference in this chapter to “the Code” as defined in paragraph (a)(1) of this section, “federal estate tax purposes,” and to other terms dependent upon the federal estate tax provisions of the Code shall be deemed to refer to the provisions of the Code in effect on the last date on which the federal estate tax was applicable to the estates of persons dying before the date of the decedent's death.
(c) In every case where an elective share petition has been filed, the personal representative of the estate shall prepare a Form 706 (United States Estate Tax Return) for the estate, regardless of whether such form is required to be filed. If such form is not required to be filed because of the permanent or temporary repeal of the federal estate tax, the personal representative shall use in such preparation the Form 706, or its equivalent form, last authorized by the Internal Revenue Service before the repeal became effective. A copy of the form must be provided to the surviving spouse by the latest of the following dates:

(1) The due date for the Form 706, as extended;
(2) If a Form 706 or an equivalent form is not required to be filed, whether or not because of the permanent or temporary repeal of the federal estate tax, 15 months from the date of the decedent's death; or
(3) Three months after the elective share petition has been timely filed.

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