§ 2317 — Abatement

(a) Except as provided in subsection (b) of this section and except as provided in connection with the elective share of the surviving spouse who elects to take an elective share, shares of distributees abate, with personal property to be abated prior to real property within each class, in the following order:

(1) Property not disposed of by the will;

(2) Residuary bequests and devises;

(3) General bequests and devises;

(4) Specific bequests and devises.

For purposes of abatement, a general bequest or devise charged on any specific property or fund is a specific bequest or devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general bequest or devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(c) If the subject of a preferred bequest or devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

Legislative History

Code 1852, § 2594; Code 1915, § 4522; Code 1935, § 4976; 12 Del. C. 1953, § 2317; 59 Del. Laws, c. 384, § 1 ; 64 Del. Laws, c. 252, § 7