In late 2013 Evidence Solutions published a set of articles: "Death and Digital Assets", "Death and Digital Assets! - Powers of Attorney", and "Death and Digital Assets! 3 of 3 – Wills". These articles were an over view of what can happen to digital assets when someone dies. They also examined some of the steps that can be taken to pass on digital assets, although state laws and some company’s terms of service might not agree.
Death and Digital Assets
This week, we discovered that Delaware became the first state to enact a law that ensures families’ rights to access the digital assets of loved ones during incapacitation or after death.
The new Delaware law called the "Fiduciary Access to Digital Assets and Digital Accounts Act," is based upon the Uniform Law Commission’s (ULC) design. The ULC is based in Chicago Illinois and according to its website: "The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law." The ULC refers to the law as the "Uniform Fiduciary Access to Digital Assets Act (UFADAA)."
Delaware is the first state to take the UFADAA and turn it into a bona fide law. The law gives heirs and executors similar authority to take legal control of a digital accounts or devices, just as they would take control of a physical assets or documents.
The new law states in part:
"A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement."
Access to digital assets needs to be addressed. Currently there is conflict between the wishes of a person owning a digital asset and the terms of service for some online accounts. Typically, when a person dies, access to a digital service officially dies with them. Facebook, for instance, in their "Statement of Rights and Responsibilities" Section 4 Item 8 says “You will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account." While giving a loved one your password when you are incapacitated or upon death may not jeopardize security, we found nothing in the Facebook document that addresses passing on the digital asset. However it is the “…let anyone else access your account …" that seems to prevent loved ones from inheriting your account.
Facebook's terms prevent transfer by referencing it in Section 4 Item 9: "You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission." And again in Section 19, Item 6 the Facebook terms say "You will not transfer any of your rights or obligations under this Statement to anyone else without our consent."
Thank goodness the Facebook terms Section 19 Item 8 also say: "Nothing in this Statement shall prevent us from complying with the law."
There currently is no cohesion of digital asset laws across the states and none appear to be as broad as the Delaware law. It will be interesting to see if other states follow in Delaware's footsteps to enact similar laws.
