Introduction to Digital Inheritance Law
The legal landscape surrounding digital inheritance is complex and evolving. As our lives become increasingly digital, the law struggles to keep pace with technological advancements. This article explores the current legal framework governing digital assets after death and provides practical guidance for ensuring your digital property is properly addressed in your estate plan.
What Constitutes a Digital Asset?
From a legal perspective, digital assets generally fall into several categories:
- Financial Digital Assets: Cryptocurrency, PayPal balances, online banking accounts, investment accounts
- Personal Digital Assets: Emails, photos, videos, social media accounts, blogs
- Digital Business Assets: Websites, domain names, online stores, digital intellectual property
- Digital Purchases: E-books, music, movies, software licenses, in-app purchases
- Loyalty Programs: Airline miles, hotel points, store rewards
Each category may be subject to different legal treatments and considerations.
The Legal Challenges of Digital Inheritance
Several factors complicate the inheritance of digital assets:
1. Terms of Service Agreements
Most digital accounts are governed by Terms of Service (ToS) agreements that often take precedence over traditional wills. Many ToS agreements explicitly prohibit account transfers upon death or contain "non-transferability" clauses. This can create conflicts between your wishes and the platform's policies.
2. Federal Laws
In the United States, several federal laws impact digital inheritance:
- Computer Fraud and Abuse Act (CFAA): Can potentially criminalize accessing someone else's accounts, even with permission
- Stored Communications Act (SCA): Limits service providers' ability to disclose the contents of electronic communications to anyone, including heirs
- Electronic Communications Privacy Act (ECPA): Restricts unauthorized access to electronic communications
3. State Laws
State laws regarding digital assets vary significantly. However, many states have adopted some version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which provides a legal framework for fiduciaries (such as executors) to access digital assets.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)
RUFADAA, which has been adopted by most U.S. states, establishes a three-tier system of priorities for determining who can access digital assets:
- Online Tools: If a service provider offers an online tool to designate account custodians (like Facebook's Legacy Contact or Google's Inactive Account Manager), these designations take precedence
- Legal Documents: If no online tool designation exists, instructions in a will, trust, power of attorney, or other legal document control
- Terms of Service: If neither of the above exists, the service provider's terms of service agreement applies
RUFADAA distinguishes between the "catalogue" of communications (sender, recipient, time, date) and the "content" of communications. Executors can generally access the catalogue but need explicit permission to access content.
Including Digital Assets in Your Will
To properly address digital assets in your will:
1. Create a Comprehensive Inventory
Create a detailed inventory of your digital assets, but keep it separate from your will (which becomes a public document during probate). Include:
- Types of assets
- Where they're located
- Their approximate value
Do NOT include passwords or access credentials in your will.
2. Explicitly Grant Authority
Include specific language in your will granting your executor authority to access, manage, distribute, or delete your digital assets. For example:
"I give my executor the authority to access, handle, distribute, and dispose of my digital assets, including but not limited to, my email accounts, social media accounts, financial accounts, digital files, and any other online accounts or digital property I may own at the time of my death."
3. Provide Specific Instructions
Include specific instructions for important digital assets:
- Which accounts should be closed or memorialized
- Who should receive specific digital assets
- How cryptocurrency should be accessed and distributed
4. Name a Digital Executor
Consider naming a specific "digital executor" who is tech-savvy and can handle your digital estate. This can be the same person as your primary executor or someone different. In jurisdictions that don't legally recognize digital executors, you can still name this person as an advisor to your primary executor.
Beyond the Will: Additional Legal Considerations
1. Password Management
From a legal perspective, the safest approach to password management is:
- Use a reputable password manager
- Create instructions for accessing your password manager
- Store these instructions in a secure location known to your executor or trusted person
- Consider using a digital legacy service like Memento Mori Email that complies with relevant laws
2. Cryptocurrency Considerations
Cryptocurrency presents unique legal challenges:
- It may be considered property rather than currency for tax purposes
- Without proper access information, it can be permanently lost
- Consider creating a legally sound "dead man's switch" or using specialized crypto inheritance services
- Consult with an attorney familiar with cryptocurrency for specific guidance
3. International Considerations
If you have digital assets stored on servers in other countries or use services based internationally, additional legal complexities may arise. Consider consulting with an attorney who specializes in international digital asset law if you have significant overseas digital holdings.
Legal Documents to Consider
Beyond a will, consider these legal documents for comprehensive digital asset planning:
- Digital Asset Trust: Can provide more privacy than a will and avoid probate
- Power of Attorney with Digital Asset Provisions: Allows someone to manage your digital assets if you're incapacitated
- Digital Asset Memorandum: A detailed but separate document referenced in your will that outlines your digital assets and wishes
Working with Legal Professionals
When seeking legal help for digital inheritance planning:
- Look for an estate attorney with specific experience in digital assets
- Ask about their familiarity with RUFADAA and other relevant laws
- Consider consulting with both legal and technical experts for comprehensive planning
Conclusion
The legal framework surrounding digital inheritance continues to evolve. By staying informed about current laws, creating comprehensive documentation, and working with knowledgeable professionals, you can ensure your digital assets are handled according to your wishes while minimizing legal complications for your heirs.
Remember that laws vary by jurisdiction and change over time. Regular reviews of your digital estate plan with qualified legal professionals are essential to ensure it remains effective and compliant with current laws.
