DELAWARE BAR EXAM DISTINCTIONS
Delaware is one of the last jurisdictions that did NOT adopt the Uniform Bar Examination. It administers its own examination, which combines the Multistate Bar Examination with a Multistate Performance Test task and four Delaware-drafted essay questions testing Delaware law. That makes Delaware fundamentally different from a UBE state: here the state's own substantive law is directly and heavily tested, and the distinctions on this page are not marginal trivia — they are the heart of the essay component. On top of that, Delaware imposes one of the most demanding admission regimes in the country, including a lengthy supervised clerkship and a Delaware-specific document of legal activities. Above all, Delaware is the corporate-law capital of the United States, and the Delaware General Corporation Law (DGCL) and the Court of Chancery dominate national business-entity doctrine. Study Delaware distinctions seriously; they are tested far more directly than in any UBE state.
📘 This page covers only where Delaware law departs from the national MBE/MEE doctrine. For the universal law, see the MBE Subject Outlines and MEE Subject Outlines.
I. EXAM FORMAT & ADMISSION
A. A Non-UBE Exam
DE Rule: Delaware administers its own bar examination — it is NOT a UBE jurisdiction. The exam consists of the MBE (200 multiple-choice questions), one MPT skills task, and four essay questions drafted by the Delaware Board of Bar Examiners testing Delaware substantive law. National: most states now use the UBE with portable scores. Delaware: scores are not portable; an MBE score from another jurisdiction is not accepted; and the essays test Delaware-specific law. The minimum passing score is a combined scaled score of 143 out of 200, with the written component (essays plus MPT) weighted 50% and the scaled MBE weighted 50%. The MPRE requires a scaled score of 85.
B. The Clerkship and Admission Requirements
DE Rule: Delaware imposes a mandatory five-month (roughly 21-week) supervised clerkship with a Delaware lawyer or court, which the applicant must substantially complete around the exam. National: most states require only the exam, the MPRE, and character-and-fitness. Delaware: the clerkship is a genuine and unusual additional requirement, along with a detailed "Checklist of Legal Activities" the clerk must complete (observing real proceedings — sheriff's sales, depositions, real-estate closings, Chancery and Superior Court sessions, and more). Delaware admits relatively few lawyers per year and is known as one of the hardest jurisdictions to enter.
ESSAY WRITING TIP: Because the four essays test Delaware law, you should write them on Delaware rules — not generic majority law. Identify the Delaware statute or doctrine, state it, and apply it. This is the opposite of UBE-state strategy, where you suppress state-specific knowledge. Knowing the Delaware courts and the DGCL by name earns credit.
DELAWARE BAR TIP: Plan for the clerkship and the Checklist of Legal Activities early; they are not last-minute items, and failing to complete them blocks admission even with a passing score. Know the court structure cold (below), because Delaware essays assume fluency with the Court of Chancery, Superior Court, Court of Common Pleas, and the Supreme Court.
II. CIVIL PROCEDURE & COURT STRUCTURE
A. Delaware's Distinctive Court System
DE Rule: Delaware maintains a separate court of equity — the Court of Chancery — which is nationally famous and central to Delaware practice. National: most states merged law and equity into a single trial court long ago. Delaware: the Court of Chancery (a non-jury equity court led by a Chancellor and Vice-Chancellors) hears trusts, fiduciary disputes, injunctions, specific performance, guardianships, and, above all, corporate and DGCL litigation. The Superior Court is the law court of general jurisdiction handling civil money damages and criminal felonies; the Court of Common Pleas handles lesser civil and criminal matters; and the Delaware Supreme Court is the single appellate court. There are separate Rules of Civil Procedure for each court (Chancery and Superior Court each have their own).
B. Statutes of Limitations
DE Rule: Delaware's limitations periods are codified in Title 10. National (typical): two-to-three-year tort periods. Delaware: most personal-injury and tort actions carry a two-year limitation; property-damage and many contract actions run three years; and Delaware enforces a three-year period for contracts generally, but contracts under seal and certain promissory instruments enjoy a longer twenty-year period (a notable common-law survival). Delaware follows a "time-of-discovery" rule in latent-injury cases. The Court of Chancery applies equitable doctrines of laches by analogy to these legal limitations periods.
EXAMPLE: A Delaware plaintiff injured by negligence has two years to sue; a plaintiff suing for breach of an ordinary written contract has three years; but a claim on an instrument "under seal" may be brought for up to twenty years — a trap rooted in the survival of the sealed-instrument doctrine.
ESSAY WRITING TIP: On a Delaware essay, identify the applicable Title 10 period, then address discovery-rule tolling. If the dispute is equitable (in Chancery), discuss laches and the analogous limitations period rather than a hard statutory bar. Delaware essays reward awareness that equity uses laches, not the statute, directly.
DELAWARE BAR TIP: Memorize two-year tort, three-year contract/property, and the twenty-year sealed-instrument survival. The seal doctrine and the laches-by-analogy approach in Chancery are distinctively Delaware and are exactly the kind of nuance the Delaware-drafted essays probe.
III. EVIDENCE
A. Delaware Uniform Rules of Evidence
DE Rule: Delaware has adopted the Delaware Uniform Rules of Evidence (D.R.E.), which closely track the Federal Rules of Evidence in numbering and substance. National: FRE govern the MBE. Delaware: the D.R.E. mirror the FRE, so FRE knowledge transfers directly to both the MBE and the Delaware essays. Differences are at the margins — Delaware retains certain privilege provisions and has its own rule treatment in a few areas, but the structure and most rules are functionally identical to the federal model.
ESSAY WRITING TIP: For the MBE, apply the FRE. For a Delaware essay testing evidence, cite the Delaware Uniform Rules of Evidence by number (they parallel the FRE), and note where Delaware's rule matches the federal rule. Because they align so closely, you can reason from the FRE and label it "D.R.E." for the essay.
DELAWARE BAR TIP: Treat Delaware evidence as FRE-equivalent for nearly all purposes, but be ready to cite the D.R.E. label on the essays. Know that Delaware, like the federal courts, does not recognize a broad physician-patient privilege the way some states do — privileges are the main area to spot-check.
IV. FAMILY LAW
A. Family Court and Equitable Distribution
DE Rule: Delaware concentrates domestic-relations matters in a statewide Family Court and is an equitable-distribution state; it is NOT a community-property state. National (majority): equitable distribution. Delaware: the Family Court handles divorce, custody, support, and juvenile matters. Divorce is available on the no-fault ground of separation (the marriage is irretrievably broken, generally shown by living separate and apart). Delaware divides marital property equitably, excluding property acquired before the marriage and by gift or inheritance. Delaware does NOT recognize common-law marriage.
ESSAY WRITING TIP: On a Delaware family-law essay, route the analysis through Family Court jurisdiction, apply the no-fault separation ground, and divide only marital property equitably (separate property excluded). Address custody under the best-interests-of-the-child factors codified in Delaware law.
DELAWARE BAR TIP: Know that Family Court is the exclusive forum and that Delaware's primary divorce ground is separation/irretrievable breakdown. Delaware does not recognize common-law marriage, so cohabitation creates no marital property rights.
V. WILLS, TRUSTS & ESTATES
A. Will Execution and Holographic Wills
DE Rule: Delaware requires a will to be in writing, signed by the testator, and attested by two credible witnesses. National (majority): two-witness wills; many states also allow holographic wills. Delaware: Delaware does NOT recognize holographic (unwitnessed handwritten) wills executed in Delaware. The Court of Chancery, through the Register of Wills sitting as an arm of Chancery, supervises probate and estate administration.
B. Elective Share and Delaware's Trust Industry
DE Rule: Delaware provides a surviving-spouse elective share. National: many states use a flat one-third or a UPC augmented-estate scheme. Delaware: the elective share gives the surviving spouse a statutory amount measured against the elective estate (reduced by certain transfers to the spouse), capped at a fixed dollar figure rather than a simple fraction in some computations — Delaware's formulation is its own and should be applied as written on an essay. Intestacy follows a conventional spouse-and-descendants distribution scheme codified in Title 12.
DE Rule: Delaware is a leading trust jurisdiction. National: most states limit perpetuities and constrain self-settled asset-protection trusts. Delaware: Delaware has effectively abolished the Rule Against Perpetuities for personal property held in trust (allowing "dynasty trusts" of unlimited duration), and Delaware authorizes self-settled domestic asset-protection trusts (DAPTs) and directed trusts. These features make Delaware a premier trust-situs state and are genuine departures from the common-law RAP and the traditional rule barring self-settled spendthrift protection.
EXAMPLE: A settlor can create a perpetual Delaware dynasty trust for personal property that never violates the Rule Against Perpetuities, and can even establish a self-settled asset-protection trust shielding assets from future creditors — both impossible under traditional common-law rules followed in most states.
ESSAY WRITING TIP: On a Delaware trusts essay, flag that Delaware has abolished the RAP for trust-held personal property and permits self-settled asset-protection and directed trusts. These are exactly the distinctions a Delaware-drafted essay will test, because they are why Delaware is a trust capital. Do not apply the traditional common-law RAP to a Delaware personal-property trust.
DELAWARE BAR TIP: Memorize the trust distinctions: no RAP for trust-held personal property (dynasty trusts), valid self-settled DAPTs, and directed/decanting statutes. On wills, remember no holographic wills and two-witness execution. The Register of Wills operating within the Chancery framework is the supervising authority.
VI. REAL PROPERTY
A. Recording Act
DE Rule: Delaware is a PURE RACE recording jurisdiction — one of only three (with North Carolina and Louisiana). National: states split among race, notice, and race-notice. Delaware: priority goes to whoever RECORDS FIRST, regardless of notice — a subsequent purchaser who records first prevails even with actual knowledge of a prior unrecorded conveyance. Both no-notice and first-to-record are required. Delaware records land instruments at the county Recorder of Deeds.
B. Adverse Possession and Foreclosure
DE Rule: Delaware's adverse-possession period is twenty years. National: periods range widely. Delaware: open, notorious, hostile, exclusive, and continuous possession for twenty years vests title — one of the longer periods in the country. As to foreclosure, Delaware uses judicial foreclosure; mortgages are foreclosed through an action in the Superior Court (scire facias sur mortgage), culminating in a sheriff's sale that the court confirms. Delaware does not use a private power-of-sale process for residential mortgages.
EXAMPLE: A Delaware claimant must hold property adversely for a full twenty years before acquiring title — significantly longer than the ten-to-fifteen-year periods common elsewhere — and a Delaware lender enforcing a mortgage must proceed judicially via scire facias and a confirmed sheriff's sale, not by self-help auction.
ESSAY WRITING TIP: On a Delaware property essay, classify the recording act as PURE RACE, apply the twenty-year adverse-possession period, and route any mortgage enforcement through judicial foreclosure (scire facias sur mortgage and sheriff's sale). The scire facias procedure is a Delaware-specific term worth using by name.
DELAWARE BAR TIP: Lock in race-notice recording, the long twenty-year adverse-possession period, and judicial foreclosure by scire facias sur mortgage with a confirmed sheriff's sale. The sheriff's-sale observation is even one of the Checklist of Legal Activities items, underscoring its centrality.
VII. TORTS
A. Comparative Negligence
DE Rule: Delaware follows modified comparative negligence with a 51% bar. National: jurisdictions split among pure, 50%-bar, 51%-bar, and contributory. Delaware: a plaintiff's recovery is reduced by her percentage of fault and is barred only if her fault exceeds that of the defendant(s) — the plaintiff may recover so long as her negligence was not greater than the combined negligence of the defendants (the "51% bar" / "not greater than" formulation).
EXAMPLE: A Delaware plaintiff fifty percent at fault still recovers half her damages; a plaintiff fifty-one percent at fault recovers nothing.
B. Joint Liability and Dram Shop
DE Rule: Delaware retains joint and several liability among concurrent tortfeasors, subject to its contribution statute (the Uniform Contribution Among Tortfeasors Act). National: many states have moved to several-only liability. Delaware: joint and several liability survives, so a plaintiff may recover the full judgment from any one liable defendant, who then seeks contribution from the others based on relative fault. On dram-shop liability, Delaware has historically declined to recognize common-law dram-shop or social-host liability — Delaware courts have generally held that the seller or host is not liable for injuries caused by an intoxicated patron, a notably defendant-favorable position. Delaware imposes no general statutory cap on personal-injury damages.
ESSAY WRITING TIP: On a Delaware tort essay, apply the 51%-bar comparative rule, then preserve joint and several liability with contribution under the UCATA — do not apply several-only apportionment. If a dram-shop issue arises, note Delaware's traditional refusal to impose vendor/social-host liability.
DELAWARE BAR TIP: Three Delaware tort distinctions: 51%-bar comparative negligence, retained joint and several liability (with UCATA contribution), and the absence of common-law dram-shop liability. The dram-shop position is a real outlier and a frequent essay trap because students assume liability exists.
VIII. CONTRACTS, UCC & STATUTE OF FRAUDS
A. UCC and the Sealed Instrument
DE Rule: Delaware has adopted the UCC, including Article 2. National: uniform adoption with minor variation. Delaware: Article 2 governs sales of goods as on the MBE. Delaware's Statute of Frauds is conventional (land, one-year, suretyship, marriage, goods of five hundred dollars or more). A genuine Delaware contract distinction is the continuing significance of the seal: a contract under seal is enforceable without consideration and enjoys the long twenty-year limitations period, a common-law doctrine Delaware has preserved more robustly than most states.
ESSAY WRITING TIP: On a Delaware contracts essay, apply general common-law and Article 2 rules, but watch for a contract "under seal" — recognize that the seal substitutes for consideration and triggers the twenty-year limitations period. This is a classic Delaware-essay wrinkle.
DELAWARE BAR TIP: The sealed-instrument doctrine is the standout Delaware contract distinction: seal equals consideration and twenty-year limitations. Otherwise, Delaware contract and UCC law tracks the national rules tested on the MBE.
IX. BUSINESS ENTITIES — THE DGCL
A. Delaware General Corporation Law: The National Standard
DE Rule: The Delaware General Corporation Law (DGCL) is the dominant corporate statute in the United States; a majority of large public companies and a vast share of Fortune 500 corporations are incorporated in Delaware. National: MEE corporate questions often draw on Delaware and Model-Act principles. Delaware: the DGCL, interpreted by the Court of Chancery and the Delaware Supreme Court, is the source of much of American corporate doctrine — the business-judgment rule, the entire-fairness standard, Revlon and Unocal duties in change-of-control and takeover contexts, and the demand-and-derivative-suit framework (including the Court of Chancery's Aronson and related tests). For Delaware, this is heavily tested and should be mastered.
B. Fiduciary Duties, Indemnification, and Charter Provisions
DE Rule: Delaware directors owe the fiduciary duties of care and loyalty (and the duty of good faith subsumed within loyalty). National: similar duties under the Model Act. Delaware: DGCL § 102(b)(7) permits a corporation's certificate of incorporation to exculpate directors from monetary liability for breaches of the duty of care (but not loyalty, bad faith, or improper personal benefit), and recent amendments extend comparable exculpation to certain officers. DGCL § 145 authorizes broad indemnification and advancement of litigation expenses to directors and officers. The entire-fairness standard (fair dealing and fair price) governs conflicted-interest and controlling-stockholder transactions, and the MFW framework can restore business-judgment review in controller buyouts when specific cleansing conditions are met.
C. Alternative Entities and Chancery
DE Rule: Delaware is also the leading state for LLCs and limited partnerships. National: LLC and LP law varies by state. Delaware: the Delaware Limited Liability Company Act and Revised Uniform Limited Partnership Act emphasize freedom of contract — the operating or partnership agreement governs, and parties may even eliminate or modify fiduciary duties by contract (subject to the implied covenant of good faith and fair dealing, which cannot be waived). The Court of Chancery is the expert forum for all of these disputes and provides Delaware's signature speed and sophistication in business litigation.
EXAMPLE: In a Delaware controlling-stockholder squeeze-out merger, the transaction is presumptively reviewed under entire fairness; but if it is conditioned at the outset on both approval by an independent special committee and an informed vote of the minority stockholders (the MFW conditions), the more deferential business-judgment rule applies instead.
ESSAY WRITING TIP: On a Delaware business-entity essay, name the DGCL section and the controlling Delaware doctrine — business-judgment rule, entire fairness, § 102(b)(7) exculpation, § 145 indemnification, Revlon/Unocal in deal contexts, and the demand/derivative framework. Precision and Delaware-specific vocabulary are rewarded heavily, because this is Delaware's home turf.
DELAWARE BAR TIP: Corporate law is the most important Delaware subject. Master the DGCL fiduciary-duty framework, exculpation and indemnification (§§ 102(b)(7) and 145), the entire-fairness/MFW analysis for conflicted deals, and the contractual-freedom approach of the Delaware LLC and LP acts. The Court of Chancery is the forum for all of it.
X. PROFESSIONAL RESPONSIBILITY
A. Delaware Lawyers' Rules of Professional Conduct
DE Rule: Delaware has adopted the Delaware Lawyers' Rules of Professional Conduct, based on the ABA Model Rules. National: the MPRE tests the ABA Model Rules. Delaware: the Delaware Rules track the Model Rules closely, with localized provisions on trust accounting (IOLTA), the Office of Disciplinary Counsel, and the Preliminary Review Committee and Board on Professional Responsibility that handle discipline under the Delaware Supreme Court's authority. Delaware is known for rigorous enforcement, including strict trust-account and recordkeeping requirements (the Delaware "Certificate of Compliance" annual filing).
ESSAY WRITING TIP: Professional-responsibility issues on a Delaware essay are graded on the Delaware Rules, which mirror the Model Rules — cite the Model-Rule framework and apply it. Note Delaware's strict trust-accounting and annual-compliance-certificate regime if the facts implicate client funds.
DELAWARE BAR TIP: Know the disciplinary structure (Office of Disciplinary Counsel, Preliminary Review Committee, Board on Professional Responsibility, Delaware Supreme Court) and Delaware's exacting trust-account and annual-compliance-certificate requirements, which are stricter than many states.
XI. CRIMINAL LAW & PROCEDURE
A. Delaware Criminal Code Notes
DE Rule: The MBE tests common-law and MPC criminal principles plus federal constitutional procedure; Delaware essays test the Delaware Criminal Code. National: common law plus MPC. Delaware: the Delaware Criminal Code (Title 11) is MPC-influenced. Notable features include the effective abolition of the death penalty (the Delaware Supreme Court struck down the state's capital-sentencing statute in 2016, and it has not been reinstated), graded offense classifications, and Delaware's own self-defense and justification provisions modeled on the MPC, including a duty to retreat outside the dwelling where retreat can be made in complete safety.
ESSAY WRITING TIP: For the MBE, apply common-law/MPC criminal law and federal constitutional procedure. For a Delaware essay testing crimes, apply the Delaware Criminal Code's MPC-style definitions and Delaware's justification provisions, including the duty to retreat outside the home.
DELAWARE BAR TIP: The standout Delaware criminal distinctions are the abolished death penalty (2016) and the MPC-style code with a duty to retreat outside the dwelling. Because Delaware essays test the actual code, know that Delaware grades offenses by class and uses MPC culpability terms (intentionally, knowingly, recklessly, negligently).
XII. DELAWARE DISTINCTIONS CHECKLIST
- Non-UBE: own exam (MBE + one MPT + four Delaware-law essays); passing score 143/200 (written and MBE each 50%); scores not portable; out-of-state MBE not accepted.
- Mandatory ~five-month supervised clerkship and a "Checklist of Legal Activities"; one of the most demanding admission regimes in the nation.
- Separate Court of Chancery (equity; Chancellor/Vice-Chancellors), Superior Court (law), Court of Common Pleas, and a single Supreme Court; each court has its own civil rules.
- Limitations: two-year tort, three-year contract/property, but twenty-year survival for instruments under seal; Chancery uses laches by analogy.
- Delaware Uniform Rules of Evidence track the FRE almost exactly.
- Statewide Family Court; equitable distribution (not community property); no-fault separation ground; common-law marriage NOT recognized.
- No holographic wills (two-witness execution); Delaware-specific elective share; leading trust state — RAP abolished for trust-held personal property (dynasty trusts), valid self-settled asset-protection (DAPT) and directed trusts.
- Race-notice recording; twenty-year adverse possession; judicial foreclosure by scire facias sur mortgage and confirmed sheriff's sale (no power-of-sale).
- Modified comparative negligence with a 51% bar; joint and several liability RETAINED (UCATA contribution); NO common-law dram-shop/social-host liability; no general damages caps.
- Sealed-instrument doctrine survives: seal substitutes for consideration and triggers the twenty-year limitations period.
- DGCL dominance: business-judgment rule, entire fairness/MFW, Revlon/Unocal, demand and derivative framework, § 102(b)(7) exculpation, § 145 indemnification; Delaware LLC/LP acts emphasize contractual freedom (fiduciary duties modifiable, implied covenant non-waivable); Court of Chancery is the forum.
- Delaware Lawyers' Rules track the ABA Model Rules with strict trust-account and annual-compliance requirements; criminal code is MPC-influenced; death penalty abolished (2016); duty to retreat outside the home.