Ronald R. Messick passed away on October 6, 2010. The Register of Wills in Kent County issued letters testamentary to H. Cubbage Brown, Esq. on October 14, 2010. On March 17, 2011, the surviving spouse, Geraldine Messick, filed a timely petition for an elective share under 12 Del. C. § 906. The Estate of Ronald R. Messick has filed a petition for instructions, seeking a Court Order instructing the Estate that it may satisfy Mrs. Messick's elective share (1) entirely in cash, (2) entirely in kind, or (3) partially in cash and partially in kind, as the Executor chooses, and that Mrs. Messick has no right to dictate which assets she receives in satisfaction of her elective share.
A surviving spouse's elective share is an amount equal to one third of the elective estate, less certain transfers. The elective estate is defined as the amount of the decedent's gross estate for federal estate tax purposes, whether or not a federal estate tax return is filed for the decedent. According to a draft United States Estate Tax Return Form 706 attached to the petition for instructions, decedent's total gross estate equals nearly six and one half million dollars. Its assets include the Ronald R. Messick Revocable Trust,  real estate, shares in several corporations, membership in a limited liability company, notes receivable, life insurance, and miscellaneous tangible personal property. Mrs. Messick believes that the Executor intends to distribute to her a one-third interest in each of the assets of the Estate,  and is concerned that as a minority owner, she will have little or no control over the business entities that she claims are being poorly run by the Executor/Trustee. Mrs. Messick opposes the petition and argues that requiring the Executor/Trustee to pay her elective share in cash would better promote decedent's intent by requiring unprofitable businesses to be sold.
12 Del. C. § 901(a) explicitly provides that "[t]he elective share may be satisfied in cash or in kind, or partly in each." This language is clear and unambiguous. Nevertheless, the amount of Mrs. Messick's elective share has yet to be finalized. It would be premature of the Court to issue an order of instruction that might be construed as foreclosing Mrs. Messick from disputing the valuation of her elective share or whether the proposed distribution of assets satisfies her elective share. However, since the proposed order also states that Mrs. Messick retains the right to demand that her elective share be paid in full, I recommend that the proposed order be approved by the Court.
Kim E. Ayvazian Master in Chancery