What does Delaware's 90-day unclaimed property letter mean?
Edvin Givargis Published 5 minute read
The short answer
It means Delaware has selected the company for unclaimed property enforcement and is offering it the better of two doors first. Under 12 Del. C. section 1173(b), the Secretary of State sends the request by certified mail or other commercially reasonable means, and the holder has 90 days from delivery to return the form stating its intent to enter the voluntary disclosure program. If the form is not received in time, the statute directs that the Secretary of State shall refer the company to the State Escheator for examination under section 1171; the referral is mandatory, not discretionary. The same architecture runs in the other direction: under section 1172(a), the State Escheator generally cannot open a new examination unless the Secretary of State's invitation came first, so the letter is not a random solicitation but the formal predicate for an audit. The two paths differ in who does the work and what the resolution costs. The voluntary disclosure agreement is a self-review on the holder's side of the table, resolved with relief from the interest and penalties that sections 1183 and 1184 would otherwise impose. The examination is conducted by outside audit firms retained by the state, typically joined by other states, typically running years, with interest accruing at one half percent per month toward its 50 percent cap and only limited waiver authority remaining once the audit notice issues: for examinations noticed after August 1, 2021, 12 Del. C. section 1185 sets a statutory floor on the interest that can be waived, and no waiver at all is available where a whistleblower initiated the matter. Ignoring the letter chooses the second door.
What the statute actually requires in the 90 days
The obligation inside the window is deliberately light: the holder delivers the program's intent form to the Secretary of State. Enrollment is a declaration of intent, not a completed disclosure; the review, the quantification, and the negotiated resolution all happen inside the program after enrollment. That design matters for how a company should spend the window. The 90 days is enough time to identify which legal entities received letters and which affiliates should be swept into the same enrollment, to take a first inventory of the record landscape, outstanding check registers, void activity, write-off accounts, credit agings, and the retention horizon behind each, and to form a preliminary view of the range of exposure, so that the enrollment decision and the scoping conversations that follow are made from knowledge rather than hope. It is not enough time to complete a remediation, and the statute does not ask for one.
The mailing itself follows a cadence. The Secretary of State sends these letters in waves, historically about twice a year, and each wave is followed months later by examination referrals drawn from its non-responders. A company that finds an unopened certified letter in a facilities mailbox or addressed to a registered agent should treat the delivery date, not the discovery date, as the start of the clock, because that is how section 1173(b) counts it.
Why the program is usually the right door
The comparison is lopsided for most holders. Inside the voluntary disclosure agreement, the holder conducts its own review under the Secretary of State's published methodology, including estimation rules for years without records, presents its work, and resolves with interest and penalty relief. The program's lookback, which its published terms express as 10 report years plus the applicable dormancy period, tracks the same limitation statute that bounds an examination, so the program does not cost the holder years of exposure it would otherwise have escaped; it costs the state's leverage. Inside an examination, the state's contract auditors run the same analysis with adverse assumptions, other states join, the timeline stretches into years of professional fees and management attention, and whatever interest relief remains at the end is capped by the statutory floor rather than negotiated away. The narrow cases that warrant hesitation exist: an entity with genuinely no Delaware nexus to the property, a holder already in another state's program covering the same property, or a dispute about whether the letter reached the right legal entity at all. Those cases justify counsel in the first weeks of the window, not silence through the end of it.
A company inclined to respond that it has no unclaimed property should first make sure the sentence is true in the statute's terms rather than the ledger's. The letter's recipients are not chosen at random; Delaware works from incorporation records, prior filings, and third-party information, and a holder with voided checks and written-off credits in its history has unclaimed property in the statutory sense no matter how clean the current balance sheet looks. The companion articles in this library on what escheats and on the audit that follows a referral walk through both halves of that analysis.
Practice notes
Calendar the deadline from the delivery date the moment the letter surfaces, and route every unclaimed property notice, questionnaire, or invitation to a single owner inside the company, because the statutory consequence attaches to silence rather than to substance. Use the window to scope: entity inventory, record horizon, property-type first pass, and a decision memo that puts the enrollment choice in front of whoever owns the risk, with the examination alternative priced honestly beside it. If enrollment is the answer, deliver the intent form well inside the 90 days and begin the record work immediately, because the program's own milestones arrive quickly once enrollment is accepted. If a genuine reason exists not to enroll, put it in writing to the Secretary of State inside the window rather than letting the referral issue by default. G&G State Tax Group provides unclaimed property voluntary disclosure representation, from the enrollment decision through the negotiated close, alongside its state and local tax practice.
This article states the law as of September 25, 2026
Statutes, rates, thresholds, and agency practice change, and a different set of facts can change the answer. Before acting on anything discussed above, contact G&G State Tax Group, or another state and local tax adviser, to confirm what has changed since this was written and how the rules apply to a specific situation.
This publication is informational in nature and is not, and should not be considered, legal, accounting, tax, or other professional advice for any person or situation. Correct application of tax law depends heavily on the facts and circumstances in each case, and G&G State Tax Group, LLC assumes no liability in connection with the use of this information, and is not obligated to inform any reader of changes in the law or other factors that could affect the information contained herein.