Delaware has enacted a law on digital death that is the first of its kind in the nation. The statue provides a deceased person’s (or incapacitated) executor (or guardian) access to his or her digital accounts and to be an authorized user of the accounts.
This is a huge deal since big corporations, including amazon and apple, have previously insisted that at your death your digital "self" including your library of digital media, can not be passed along to your inheritors. While this law does not specifically allow for passing on digital goods to inheritors beyond anything stated in the EULA, it begins clearing the way for laws around the inheritance of digital assets.
The law reads as follows:
Except as otherwise provided by a governing instrument or court order, a fiduciary may exercise control over any and all rights in digital assets and digital accounts of an account holder, to the extent permitted under applicable state or federal law or regulations or any end user license agreement. 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. (emphasis added)
Thus, the executor or guardian would have access to the person’s email, music, photos, and other digital content. In passing the law, the Delaware legislature noted that people’s lives are increasingly conducted on-line and that their assets are increasingly stored in the “cloud”. Under current probate and estate laws, it is difficult for executors to gain access to a deceased person’s digital assets. Specifically, the legislature stated:
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.
However, the law is not as sweeping as it appears. The statute specifically states that it is subject to federal and state laws as well as end-user license agreements. Both Apple and Google end-user licenses do not appear to allow this type of activity. Moreover, both end-user licenses state that they are governed by the State of California not Delaware. Therefore, it may be difficult for an executor in Delaware to obtain access to a deceased person’s Gmail or iTunes accounts. Google actually has a “digital afterlife” service whereby a person can set up how his or her accounts will be handled after his or her death. Consequently, Google may ask the courts to defer to its established services and not recognize the Delaware statute. Moreover, some advocates are opposed to the Delaware law because they believe it violates the privacy rights of the people who communicated with the dead person. For example, the executor may read emails to and from the deceased person that contain information subject to professional rules of confidentiality or are simply very private matters.
Although novel, the Delaware law does not currently have a lot of “teeth”. Its effectiveness will likely be tested in court, at which point it will be clearer as to what powers an executor has access a deceased person’s digital assets.
