In what has become a literal battle of wills, Delaware recently become one of the first states in the union to grant families’ access rights to the digital assets of their deceased and incapacitated loved ones.
Under House Bill 345, Delaware residents 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, according to Delaware Governor Jack Markell’s website. Eighteen or so states have enacted or are looking to enact at least some digital death provisions but Delaware’s is believed to be one of the more comprehensive so far, according to experts.
“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,” the site states.
Working in conjunction with expert attorneys from the Uniform Law Commission and the Estates and Trusts Section of the Delaware State Bar Association, Rep. Darryl 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.
A good overview of the legislation’s impact was written by Stateline, the state government blog run by the Pew Charitable Trusts, prior to the bill’s approval. From the Stateline story:
If the Delaware measure becomes law, it would supersede any “terms of service” agreements that users have with Internet and social media providers. However, if a person specifies in a separate online tool, such as Google’s “inactive account manager” that he wants emails deleted or transferred to a particular person after a period of inactivity, that would take precedence.
“We put in provisions that prohibit the tech companies from making the choice for you. They can’t, in their service agreement, say that upon your death, we’re going to delete your account,” said Democratic state Rep. Darryl Scott, who co-sponsored the legislation and worked with the state’s bar association to get it passed. “We were trying to restore control to the family to make those decisions, just as they do with many other things, like journals and letters and safety deposit boxes.”
Delaware’s bill is similar to a model law endorsed recently by the Uniform Law Commission, a nonprofit organization of lawyers, including legislators and judges, appointed by each state government. The group researches and drafts standardized state laws that can then be considered by legislatures.
Benjamin Orzeske, the commission’s legislative counsel, said the group spent two years working on the digital assets proposal, and he thinks it will be introduced in about a dozen states next year. “This law isn’t changing the level of privacy,” Orzeske said. “It’s just making it media neutral, whether it’s on paper or online.”