We have previously blogged about issues surrounding access to the digital assets and accounts of the deceased or incapacitated. Legislation has failed to keep up with the rapid advancement of technology and our growing online presence.  Who has access to, or the legal right to access, email, social media accounts, bitcoin, online banking accounts etc., of the deceased or incapacitated?  Can you leave your Twitter handle, domain names and blogs to your family in your will?

The legislature of the State of Delaware just introduced what they think is a solution to these problems. On August 12, 2014 Delaware’s governor signed into law the “Fiduciary Access to Digital Assets and Digital Accounts Act” which takes effect January 1, 2015. While other states have similar legislation,¹ the Delaware act is much more broad and comprehensive.  The “Synopsis” of the legislation states that:

Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts.  The Act should be construed liberally to allow such access and control, especially when expressly provided for in a written instrument.

This new act provides that:

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 definition of “digital assets” includes data, text, emails as well as social networking content, health care records, and software licenses or the like including the username and passwords. “Digital account” includes social media accounts, domain registration accounts, web hosting account and online store accounts.

While many estates professionals are praising this new law, it is not without opposition. The State Privacy and Security Coalition, an umbrella group that represents Google, Yahoo, Facebook and other firms, strongly oppose the law stating that it violates current privacy legislation, specifically the Electronic Communications Privacy Act of 1986 which places restrictions on what electronic communication providers may disclose without a court order.

See below for more on this new law, and its potential conflict with privacy legislation from the Delaware Law Weekly website:

http://www.delawarelawweekly.com/id=1202668058754/Under-New-Law-Fiduciaries-Can-Access-Deceaseds-Digital-Assets

http://www.delawarelawweekly.com/id=1202668686577/Does-Delawares-New-Digital-Asset-Law-Conflict-With-Federal-Statute

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1. See Connecticut Statutes 45a-334a; Indiana Code 29-1-13-1.1, Rhode Island General Laws Chapter 33-27, Oklahoma Statutes 58-269, Idaho Statutes 15-3-715(2), Virgina Code 64.2-110, and Nevada Revised Statutes 143.188.