Death and Digital Data

A controversial new state law is making it easier for estate executors to access digital data that include email, photos, and social media posts, after the account holder dies. 

Because many Internet companies limit access to customers’ accounts, when the account holder dies, estate executors typically must obtain a court order to gain access to the account—which can be both expensive and time consuming.  Under a Delaware law passed last summer, executors can now access online accounts without a court order, unless otherwise specified by the deceased.  Similar legislation is to be considered in several other states. 

The new Delaware law gives access to those serving as agents for the deceased under a power of attorney and those serving in a fiduciary role.  This means that the law could extend beyond Delaware’s borders, making it possible for trustees to access digital data of a person’s assets that are placed in a Delaware trust.  

Delaware’s law, called the Fiduciary Access to Digital Assets and Digital Accounts Act, is designed to give legally appointed fiduciaries the same access to digital assets as they would have for more tangible assets, but not without restraints.  The law requires the fiduciary to follow the deceased or incapacitated person’s instruction for how accounts should be managed.  If there are no written instructions, the fiduciary may act how he or she sees fit. 

See Rachel Emma Silverman, When You Die, Who Can Read Your Email?, The Wall Street Journal, Feb. 1, 2015.

Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.