Trusts & Estates

Delaware is first state to adopt model law that says social media accounts can be inherited

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When individuals die their social media accounts often expire along with them. Even if their loved ones have the passwords, terms of use for Facebook and other providers routinely restrict account-sharing.

But a uniform law that Delaware reportedly has become the first state to enact changes this expectation, recognizing social media accounts as property and providing for executives and heirs to get the passwords. The Uniform Fiduciary Access to Digital Assets Act also gives guardians responsible for disabled individuals a right to oversee their social media accounts, according to the Law & Disorder blog of Ars Technica and the Philadelphia Inquirer.

“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,” the statute says.

Because the law allows trusts to hold title to digital assets, individuals with online artwork, photo collections or computer code they want to preserve can pass them on to their heirs in this manner as part of an estate plan, Trish Hall of Connolly Gallagher tells the Inquirer. She helped persuade Delaware lawmakers to enact the statute.

Individuals can also restrict access to their social media accounts, providing in their wills that heirs cannot open or change the accounts, the newspaper reports.

While the new law resolves some legal issues concerning so-called digital death, however, it may well create new ones, the Law & Disorder article points out.

“This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Jim Halpert of DLA Piper tells the law blog. He oversees a trade association known as the State Privacy and Security Coalition that represents Facebook, Google, Yahoo and others.

“This would include highly confidential communications to decedents from third parties who are still alive—patients of deceased doctors, psychiatrists, and clergy, for example—who would be very surprised that an executor is reviewing the communications,” Halpert said. “The law may well create a lot of confusion and false expectations because, as the law itself acknowledges, federal law may prohibit disclosing contents of communications.”

Hat tip: Daily Mail.

Related coverage:

ABA Journal (2012): “Of Sound Mind: Make Plans for Your Digital Estate”

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