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Who Has the Right to Make Funeral Decisions in Delaware?

In Delaware, who decides what happens to a person’s body after death is set by Del. Code Ann. tit. 12, §§ 264-265. If the person did not name someone in advance, the right usually falls first to the surviving spouse (if not legally separated), then passes down a fixed order set by the law.

This page sets out that order, how ties are settled, when someone loses the right, and what happens if the family disagrees. It is general information, not legal advice.

Who decides, in order, under Delaware law

  1. The decedent, through a declaration (or DD Form 93)
  2. Surviving spouse (if not legally separated)
  3. Appointed personal representative, or will nominee if none appointed
  4. Adult children (majority)
  5. Parents or legal guardians (acting in writing)
  6. Adult siblings (majority)
  7. Next of kin by descent (any one)
  8. Any willing person after documented good-faith contact efforts
  9. Public administrator

The right belongs to the first person or group on the list who is available, willing and able to act. If they decline or cannot be reached, it passes to the next.

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Can you name someone in advance in Delaware?

Yes. The document the law requires: Declaration of Disposition of Final Remains (§ 265), which may name a designee and alternate; DD Form 93. A valid designation comes before a spouse or any relative.

When several people share the right

Majority of reachable children or siblings; parents and guardians act by majority in writing.

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When someone loses the right

The law we reviewed does not list specific circumstances in which a person loses the right.

If the family disagrees

If the needed assent cannot be obtained, a final judgment of the Court of Chancery in the county of residence is required, consistent with the decedent's reasonable wishes.

In Delaware, the estate's personal representative outranks adult children.

Death certificates and local help in Delaware

Certified death certificates come from the vital records office where the death happened: Delaware vital records (CDC directory). Our guide to getting a death certificate in Delaware covers fees and who can order.

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