Death and Digital Content: Protecting Digital Assets After The Death Of A User

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In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”). As illustrated by two recently decided New York Surrogate Court cases, and as previously discussed on this blog (You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death? and AN UPDATE ON A FIDUCIARY’S ACCESS TO THE DIGITAL RECORDS OF A DECEDENT), the Courts have created a distinction between the disclosure of a decedent’s catalogue and that of a decedent’s digital content (Matter of Serrano, 54 NYS3d 64 [2017]; Matter of White, 10/3/2017 NYLJ p. 25, col. 1). The catalogue of electronic communications includes the name of the sender, the e-mail address of the sender, and the time and date of the communication. A decedent’s digital content includes the subject line and text of e-mail messages. The disclosure of a decedent’s non-content information to a fiduciary is permitted, if not mandated, by Article 13-A of the EPTL (see Serrano, supra).

On the other hand, with respect to a service provider’s obligation to disclose the “content” of electronic communications, the determinative factor appears to be whether the deceased user gave an affirmative direction to disclose the content. The law first looks to whether the user used an online tool to direct disclosure of the content. Absent online direction, the law then looks to a deceased user’s will or other written instrument (see Wills, Trusts & Estates: Plain & Simple – What happens to your Social Media and other digital life when you die?). These decisions demonstrate the emergence of digital assets as the impetus of disputes in estate litigation matters and the importance of properly planning for same.

More recently, Surrogate Mella of New York County, addressed the interplay of Article 13-A of the EPTL and a decedent’s digital images. In Matter of Swezey, 2019 NYLJ LEXIS 135 (Sur Ct, New York County 2019), the executor of the decedent’s estate commenced an SCPA 2103 proceeding for the turnover of photographs stored in the decedent’s iTunes or iCloud account from Apple Inc. (“Apple”). The decedent’s will bequeathed his personal property and residuary estate to his surviving spouse, the executor of the will. However, the decedent did not use an online tool to provide direction for his digital assets, nor did his will specifically provide for the disposition of those assets. Apple informed the executor that a court order would be required to disclose the electronic data from the Apple ID. Accordingly, petitioner turned to the Court for an order directing Apple to disclose the digital data.

In analyzing the determining factors, the Court noted that “no provision in decedent’s will expressly authorizes the executor to access decedent’s digital assets and petitioner points to no other document authorizing such access. Nor does petitioner provide proof of decedent’s use of any online tool granting his personal representative access to his digital property” (id.). Nevertheless, the Court ordered Apple to disclose the photographs stored in the decedent’s Apple account. In reaching her decision, the Surrogate distinguished electronic communications from other digital assets, such as photographs, pointing out that the disclosure of other digital assets does not require proof of a user’s consent or a court order.

With regard to a fiduciary’s duties, the Surrogate further noted:

[i]n this age, a decedent’s property – which is defined as anything that may be the subject of ownership, real or personal – must include assets kept in a digital form in cyberspace. The New York legislature enacted Article 13-A of the Estates, Powers and Trusts Law to apply traditional governing fiduciaries to this new type of property and authorize fiduciaries to gain access to, manage, distribute and copy or delete digital assets. Fiduciaries are now charged with the same duty of care, loyalty and confidentially to marshal and protect a decedent’s digital assets as they do to manage a decedent’s tangibles.

The Swezey decision reflects the importance of taking measures at the planning stage to ensure a fiduciary of an estate will be permitted access to a decedent’s digital assets. The decision is also significant because it makes clear that a decedent’s digital images, as opposed to electronic communications, do not require proof of a deceased user’s consent before his or her fiduciary may access them.