Proposal would protect digital assets after death


Delawareans’ digital legacies would be treated the same as the physical assets, documents and records left for their heirs and executors to handle after their deaths according to legislation introduced today by Rep. Darryl Scott and sponsored in the Senate by Sen. Bryan Townsend.

House Bill 345, titled the Fiduciary Access to Digital Assets and Digital Accounts Act, addresses a growing problem facing families and the legal professionals who guide them through the realm of estates, wills, trusts and probate after the death of a loved one. More and more frequently, attorneys and survivors are finding it difficult or impossible to access and manage the online accounts and assets of the decedents whose estates they’re responsible for settling. Often, the user agreements for websites and other digital services stipulate that no person other than the user is entitled to access his or her accounts.

According to the bill, digital assets such as email, cloud storage, social media, health records, content licenses, databases and more would be deemed a part of a person’s estate upon death, and the entities who control access to those assets would be required to provide the legal executor with control over the deceased’s digital assets. The legislation would also apply in cases where a person becomes incapacitated and his or her assets come under the control of a fiduciary or power of attorney.

House Bill 345, which was reviewed and approved by the Delaware State Bar Association, would be the first comprehensive law of its kind in the nation. Seven other states have passed laws dealing with the digital assets of decedents, but the definitions used vary along with the level of access granted to fiduciaries, according to the Uniform Law Commission.

Rep. Scott drafted this bill after talking with a constituent in his district, who was refused access to an email account held by her late husband. Even though his will named her as the executor of the estate, the email service provider would not allow her to sign into the email account. Eventually, the provider agreed to delete the deceased’s account and all its stored information, but never allowed the content to be reviewed.

“Years ago, when people kept all of their important documents in a filing cabinet or desk drawer at home, settling the affairs of a deceased family member was usually a straightforward process, if not a time-consuming one,” said Rep. Scott, D-Dover. “Today, with more and more vital records, assets and personal information generated and stored in digital form, we need to make sure that families don’t lose the ability to handle their loved ones’ estates in a responsible, comprehensive manner.

“An email account, probably the most basic component of anyone’s digital life, can hold all kinds of important information about you—financial, medical and otherwise,” Rep. Scott added. “Not to mention the sentimental artifacts, the messages, the photos our families may want to keep after we pass away.”

Sen. Townsend, D-Newark, said the legislation will enable Delaware law to be at the forefront of adapting to today’s technology.

“The popularity of dealing with personal affairs online has exploded in recent years because it’s often so much more efficient and consumer-friendly than traditional paper-based methods,” Townsend said. “The frustrations faced by people trying to obtain critical information from the online accounts of their late or incapacitated loved ones represent an increasingly common challenge that stems from the popularity of the digital world. This bill will help to create a solid bridge over these challenges, and connect the digital world with the traditional paths we must painfully navigate when a loved one passes or becomes incapacitated.”

According to the bill, a website or a company in control of a decedent’s digital assets would be required to treat the legal fiduciary of that person’s estate the same as they would have treated the decedent during life. That means they would be obliged to provide whatever username, login and password information necessary to access the decedent’s accounts.

The legislation would not preclude a person from stipulating in his or her will any specific instructions about the handling of digital assets after death.

House Bill 345 has been assigned to the House Telecommunication, Internet and Technology Committee.