The Law

Proper transmission of digital assets after death is an emerging area of law. Currently, there is no legal consensus in the United States on this issue.

The current state(s) of affairs

As of this writing, only five states have enacted legislation that governs how digital assets should be handled: Rhode Island, Connecticut, Indiana, Oklahoma, and Idaho. The scope of each state’s legislation varies in relation to each other as follows:

  • Narrowest: Rhode Island and Connecticut restrict their coverage to email.
  • In between: Idaho and Oklahoma specify coverage for “any social networking website, any microblogging, or short message service website, or any e-mail service website.”
  • Broadest: Indiana does not identify the types of online information that is covered. Instead, it refers to “any documents or information of the deceased person stored electronically.”

According to the Digital Passing website, as of February this year,  18 other states  are considering related legislation.

Enter the Uniform Law Commission

To combat the lack of a clear national legal consensus, Minnesota estate planning attorneys Jim Lamm (who maintains the Digital Passing website) and Gene Henning submitted a proposal to the Uniform Law Commission for a “uniform law to grant fiduciaries specific powers and authority regarding a person’s online accounts and digital property during incapacity or death.” The Uniform Law Commission (ULC) produces the Uniform Probate Code and other model and uniform laws.

Earlier this year, a ULC committee released a draft proposal. To become a Uniform Act, the draft must be approved by the Committee of the Whole of the ULC and at least 20 states. Should the statute be approved, individual states must choose to enact the statute wholly or partially.

Complex challenges faced by the UlC committee

Drafting a successful statute that addresses a task that can be emotionally fraught, in the midst of an ever-changing technical and legal landscape, is no small challenge. Among the key challenges that the ULC must address are: Defining terms that have not been previously defined in any statutes, ensuring compliance with existing federal and state laws that address unauthorized access to digital information (for example, the Stored Communications ActComputer Fraud and Abuse Act,  and The Digital Millennium Copyright Act), providing enough specificity to prevent unnecessarily litigation, and enough generality to allow individuals and courts leeway for evolving interpretation as technology continues to change.

In his blog, attorney David Shulman, who was appointed as an advisor to the ULC committee that is drafting the statute, aptly sums up the inherent complexities faced by the committee:

I am attending my second meeting. The issues are more difficult than I thought. We have representatives from Google, Facebook, Microsoft, and other online companies in the room, and the needs of the trusts and estates attorneys is in direct conflict with what they say are the federal privacy standards imposed upon them.

In the meantime, individual states, attorneys, and their clients must wrestle with the questions of how best to address the complex moral, legal, and technical issues involved with the proper transmission of digital assets after someone has died.

What can you do to make the best of the current legal uncertainty?

In the absence of legal certainty, you can still take actions to help ensure that your digital assets are properly dealt with when you die or become incapacitated. The first step is to understand the digital estate planning process and basic terminology, so that you are well-prepared to take action.

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