In the 21st century, our lives are increasingly intertwined with technology. From social media accounts to online banking, digital assets have become a significant part of our daily existence. However, the rise of digital assets over the past few decades brings complex legal challenges, particularly concerning digital asset loss and inheritance. 

Understanding the potential legal implications of these issues – and the risks of digital asset loss – is crucial for ensuring that your digital legacy is protected and passed down to your heirs according to your wishes.

Digital assets encompass various electronic possessions, including emails, social media accounts, digital photos, cryptocurrencies, online banking accounts, and more. These assets often hold significant monetary and sentimental value, making their management and transfer after death a critical concern.

There are numerous potential legal issues surrounding digital assets that can arise when a person passes away. Understanding the problems that you and other surviving loved ones may encounter will help reduce stress during an already difficult time in your lives; the last thing you want is unexpected litigation of any kind.

One of the primary legal challenges surrounding digital asset inheritance is the lack of clear legislation. Unlike physical assets, which are governed by well-established inheritance laws that have, in many cases, existed for centuries, digital assets are subject to varying laws and regulations depending on the jurisdiction. This lack of uniformity can create confusion and complications when the time comes to transfer digital assets to heirs.

Furthermore, because digital assets are relatively new compared to physical assets, there simply hasn’t been enough time for the legal system to create clear precedents and develop indisputable processes for inheritance.

Accessing a deceased person's digital assets often involves navigating privacy laws and terms of service agreements set by digital service providers. Many service providers have strict privacy policies that can make it difficult to gain access into the deceased's accounts. While this is intended to protect the privacy of living users, it can lead to frustration for surviving relatives of deceased people. 

To combat some accessibility problems, Facebook has specific protocols for memorializing or deleting accounts, while Google offers an Inactive Account Manager feature to designate trusted contacts who can access data after a user's death.

Although there are not a lot of precedents yet, several notable legal cases have dealt with digital asset inheritance. In the case of Ajemian v. Yahoo, the Massachusetts Supreme Judicial Court ruled that the executor of a deceased person's estate could access the contents of the deceased's Yahoo email account, despite Yahoo's terms of service prohibiting such access. This case proves the importance of including provisions for digital assets in estate planning.

Another notable example is the case of Broadway executive Nick Scandalios, in which the court granted the widower of a deceased man access to his Apple iCloud account, allowing him to retrieve family photos and other digital memories. 

In court filings from 2019, Scandalios confirmed that his husband, former champion gymnast and Hollywood stuntman, Ric Swezey, suddenly passed away at age 45 in May 2017. Scandalios and their 10-year-old twins survived him.

Per one report about the case, “Ric and I did not contemplate the need for written consent to access our photographs or his Apple account…However . . . it was understood that we gave, to each other, implicit consent to access many of the other’s digital assets.”

If you’re concerned about your family losing access to precious data when you’re gone, you can give yourself and everyone in your life peace of mind by taking steps to protect your digital assets – and your family’s memories! – now.

Creating a comprehensive digital estate plan is essential for protecting your digital assets. This plan should include an inventory of all digital assets, along with login credentials and instructions for accessing them. Designate a digital executor who will be responsible for managing and distributing these assets according to your wishes. 

As people’s online lives become inextricably entangled with their “real lives,” this is becoming an increasingly crucial component of legacy planning. Younger estate planners are particularly attuned to making sure their clients have a plan for passing down digital assets.

Explicitly including digital assets in your will can help ensure they are properly managed and transferred. Specify your wishes regarding the distribution of these assets and provide the necessary information for accessing them. It's also important to update your will regularly to reflect any changes in your digital asset portfolio.

It is wise to sit down with your heirs to have them familiarize themselves with the terms of service agreements for your digital accounts while you are still living. These agreements often contain specific provisions regarding account access and data retrieval. Understanding these terms can help heirs navigate the process of accessing and managing digital assets.

Because digital asset inheritance is a complex issue, seeking legal assistance is advisable. An attorney specializing in digital estate planning and accessing the deceased’s digital accounts can provide valuable guidance and help ensure that all legal requirements are met.

The legal implications of digital asset loss and inheritance are constantly evolving as social media, online photo albums, and digital document storage become increasingly commonplace. Take proactive steps to protect your digital legacy, and ensure that your digital assets become part of your family’s story for generations to come.

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