Delaware has become the first state in the United States to enact a law that gives executors the right to access the digital assets of their deceased or incapacitated loved ones, in accordance with their wishes. On August 12, 2014, Governor Jack Markell signed the Fiduciary Access to Digital Assets and Digital Accounts Act (“the Act”), which will become effective on January 1, 2015.
The Act allows fiduciaries to access and control the digital assets and digital accounts of an incapacitated or deceased loved one. The Act directs that it should be construed liberally in order to provide for the necessary access and control, especially when those powers are discussed in a writing.
The Act mirrors the Uniform Law Commission’s (“ULC”) Uniform Fiduciary Access to Digital Assets Act (“the UFADAA”). The ULC is a non-profit organization that lobbies to enact model legislation across all jurisdictions in the United States. The ULC approved the UFADAA on July 16, 2014, at its 123rd Annual Meeting in Seattle, Washington.
Prohibitions on password sharing can create significant obstacles to people trying to access the account of an incapacitated or deceased loved one.
Many important aspects of our lives, including work, socialization, and recreation, now take place online. However the service agreements for many of the most popular digital services forbid users from sharing their passwords with others. Prohibitions on password sharing can create significant obstacles to people trying to access the account of an incapacitated or deceased loved one.
The UFADAA solves this problem by treating digital assets the same as tangible ones. When the original account holder’s privacy choices are expressed in a writing, such as a will or trust document, the UFADAA gives deference to those wishes. If a person specifically states they want to keep certain assets private, the UFADAA ensures that access to those assets remains limited.
Delaware’s new law seeks to rectify these problems by giving an executor control over digital assets such as email, social media accounts, health records, and more.
Although some states already have provisions regarding digital assets, the new Delaware law based on UFADAA goes further to empower heirs than any other existing statute. If a person dies and Delaware law governs his or her will, the estate’s representative would have access to the decedent’s digital accounts by default.
The new Delaware law gives a fiduciary who has authority over a decedent’s digital assets the same access rights as the original account holder. Such a person is deemed to be an authorized end user under all relevant laws and license agreements and to have the account holder’s lawful consent to access the account.
Delaware House Representative Daryl Scott (D-Dover) is the lead author of the bill. While drafting the legislation, Scott worked closely with expert attorneys from both the ULC and the Estates and Trusts Section of the Delaware State Bar Association. He was inspired to address the issue after speaking with a constituent who was denied access to her late husband’s email account. The account held important billing notices and financial communications, all of which was lost when the service provider deleted the account.
A similar situation gained widespread attention in 2004 when Yahoo! denied email account access to a U.S. Marine’s family after he was killed in action in Iraq. Email is one of the few ways that a service member can keep in touch with family and friends while deployed to remote areas. Digital accounts may also house important personal information that families might need after a service member is killed abroad.
Delaware’s new law seeks to rectify these problems by giving an executor control over digital assets such as email, social media accounts, health records, and more. The controlling website or company must give a fiduciary control over the decedent’s digital assets by providing any necessary access information, unless the decedent has specified otherwise. The entity must treat the executor or fiduciary in the same manner as it would have treated the decedent in life.
At a minimum, before making any changes all of these companies require proof that the account holder has passed away, proof that you specifically are a representative of the deceased, details of what you want done to the account, and contact information.
For all other states that do not have laws controlling digital assets, it is up to the website’s policies in determining what happens to a deceased member’s account. On Facebook, a family member or friend must fill out a “special contact form” to turn someone’s account into a “memorial.” The profile automatically becomes private to everyone but confirmed friends, contact information is removed, and no one can log onto the account in the future. However, people can still go to the page and leave posts on the Wall in remembrance. As for Twitter, there is a formal method posted in its Help Center for family members who want to either remove or archive tweets from a deceased user’s account.
On the other hand, Google’s policies state that unless a lawful representative of the deceased follows the steps outlined to gain access to a person’s email, contacts, etc., the information remains online indefinitely. Google’s policy is stricter then Facebook or Twitter since email accounts are more likely to contain private information. At a minimum, before making any changes all of these companies require proof that the account holder has passed away, proof that you specifically are a representative of the deceased, details of what you want done to the account, and contact information.
A particularly important problem is that the law has the potential to intrude into the privacy of still-living third parties who communicated with the deceased.
Like all new laws, the new Delaware law has its supporters and opponents. Jim Halpert, an attorney with DLA Piper, said that he opposes the law based on the potential conflicts that may arise. For example, there is not a clear answer on how to deal with this statute when it conflicts with website’s terms of service agreements a user must accept when initially making an account.
A particularly important problem is that the law has the potential to intrude into the privacy of still-living third parties who communicated with the deceased. Halpert warns about “highly confidential communications between the decedent and the third parties that are still alive– patients of deceased doctors, psychiatrists, clergy, etc.– who would be very surprised that an executor is reviewing the communication.” The law also creates confusion because access to some information is still barred if federal law prohibits it. Ultimately, this will put pressure on companies to reevaluate their privacy agreements in order to avoid lawsuits.
Members of the ULC are hoping to present this model legislation to state lawmakers across the country for their consideration. The group hopes that the ideas contained within UFADAA will be adopted nationwide in order to maintain uniformity in estate law.