Rep. Scott's first-in-nation digital assets bill becomes law

 

DOVER – Gov. Jack Markell today signed legislation sponsored by Rep. Darryl Scott that will ensure families’ rights to access the digital assets of their deceased and incapacitated loved ones, in accordance with their wishes.

Under House Bill 345, Delawareans’ digital legacies will be treated the same as the physical assets, documents and records left for their heirs and executors to handle after their deaths. The new law represents the first comprehensive state statute dealing with the disposition of a decedent’s digital assets in the nation.

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. 

“This problem is an example of something we see all the time in our high-tech age – our laws simply haven’t kept up with advancements in technology,” said Rep. Scott, D-Dover. “By signing this bill into law, we’re helping to protect the rights and interests of the average person in the face of a rapidly evolving digital world.”

Working in conjunction with expert attorneys from the Uniform Law Commission and the Estates and Trusts Section of the Delaware State Bar Association, 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 to access important billing notices and financial communications. Instead, the provider deleted the deceased’s account and all its stored information, never allowing the content to be reviewed.

“As we conduct more of our professional and personal business online, we must also change our laws to match the reality of how people live in the 21st Century,” said Gov. Markell. “This legislation will help our laws keep pace with changing technology and forms of communication.”

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

Now, a website or a company in control of a decedent’s digital assets is 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 are obliged to provide whatever username, login and password information necessary to access the decedent’s accounts, unless the user specifically directed that the account not be accessible in the event of death or incapacitation.

Last month, the Uniform Law Commission voted at its annual conference to endorse the model Fiduciary Access to Digital Assets Act, which is virtually identical to House Bill 345. Members of the ULC now will present the model legislation to state lawmakers across the country for consideration.

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