Delaware Transfer-on-Death Deed

At a glance

How the deed works

Delaware recently adopted the Uniform Real Property Transfer on Death Act, codified at Del. Code title 25, chapter 2 (§§ 201–221). Under § 205, an individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed. By its own terms (§ 203) the chapter applies to TOD deeds made before, on, or after December 4, 2025 by a transferor dying on or after December 4, 2025 — so it governs deaths from that date forward.

The TOD deed must contain the essential elements of a properly recordable deed, must state that the transfer occurs at the transferor's death, and must be acknowledged (notarized). Critically, under § 209 it must be recorded before the transferor's death in the public records of the recorder of deeds for the county where the property is located. An unrecorded deed, or one recorded only after death, is ineffective. No notice to, delivery to, or acceptance by the beneficiary is required during the transferor's life, and no consideration is needed.

During life the transferor keeps full control — the deed passes no present interest, and the owner may sell, mortgage, or revoke it. Because the act is new to Delaware (effective for 2025-and-later deaths), owners and title professionals are still building practice around it, and it is wise to confirm current requirements with an attorney licensed in Delaware.

Recording & execution requirements

A transfer-on-death deed only works if it is executed and recorded correctly. In Delaware:

• Recording before death: Must be recorded before the transferor's death in the office of the recorder of deeds.
• Governing statute: Del. Code tit. 25, ch. 2 (§§ 201–221) Del. Code tit. 25, ch. 2 — Uniform Real Property Transfer on Death Act (§ 205 authorizes the deed) · applies to transferors dying on or after December 4, 2025.

Changing or revoking the deed

A recorded TOD deed remains revocable during the transferor's life (§ 211), even if the deed states otherwise. Revocation is accomplished by recording — before death and in the same recorder's office — a later TOD deed, an express instrument of revocation, or an inter vivos deed that expressly revokes the TOD deed or conveys the same interest to someone else.

Consistent with the Uniform Act, after a TOD deed is recorded it cannot be revoked by a physical act on the document itself; the revoking instrument must be executed, acknowledged, and recorded before death. Where property is co-owned, the effect of one owner's revocation depends on how title is held.

Mortgages, Medicaid & community property

Existing mortgages and liens

Under the Uniform Act, a beneficiary takes the property at the transferor's death subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property was subject during the transferor's life. The TOD deed passes the owner's interest as-is; existing mortgages and liens are not extinguished, and the beneficiary takes the land encumbered.

Medicaid estate recovery

Property passing by a TOD deed may be exposed to Delaware Medicaid estate recovery, and recovery scope can change. The new TOD-deed statute does not by itself shield the home from a state Medicaid claim after death. Anyone coordinating long-term-care Medicaid with a TOD deed should confirm current estate-recovery rules with the Delaware Division of Medicaid & Medical Assistance and an attorney licensed in Delaware.

Community property

Delaware is a common-law (separate-property) state. Delaware is a common-law (separate-property) state, so there is no community-property survivorship option. Married couples commonly hold a home as tenants by the entirety, which already carries a right of survivorship; a TOD deed is most useful for individually held interests or as a coordinated part of a couple's plan.

State-specific quirks

Where to read next

• Delaware estate & inheritance tax — whether Delaware taxes what you leave behind, and the small-estate probate ceiling, each figure cited to the statute.
• The Executor & Heir’s Guide — the probate deadlines for Delaware, cited to the controlling statute.
• Funding a revocable trust — a common way to keep many kinds of property out of probate.
• ← Back to the transfer-on-death deed comparison

Sources & methodology