Federal Preemption of Fiduciary Access to Digital Property

Sevenstates currently have laws granting fiduciary access to the online accounts ofan incapacitated or deceased person, and at least eighteen other states areconsidering passing such a law.  TheUniform Law Commission is also drafting a Fiduciary Access to Digital Assetsmodel act. 

Thesestate laws granting fiduciary access may have a limited effect due to federalpreemption or supremacy, especially the privacy protections under the federal StoredCommunications Act.  However, a court mayconclude that state fiduciary laws, as well as the Uniform Law Commission’smodel act, generally would not conflict with, or be preempted by, the StoredCommunications Act.

Checkout Jim Lamm’s Digital Passing Blog for background information on the StoredCommunications Act, reasons why fiduciaries need access to online accounts, andhis thoughts on federal preemption and supremacy.

See Jim Lamm, Thoughts on the Stored Communications Act,Federal Preemption and Supremacy, and State Laws on Fiduciary Access to DigitalProperty, Digital Passing, Nov. 4, 2013.