Digital Assets – Few Laws Legislate Access to Them after Death

If you own digital assets like a Facebook page or a Google email account, what happens to them when you die?  Assuming that your next of kin knows your passwords, he or she can easily delete them.  However, if your passwords are not available, shutting down these accounts can prove problematic.  Each email or social media company has specific rules governing the disposition of its accounts and refuses to vary from those rules.  Some allow an executor or next of kin with suitable proof of death to close an account.  Others do not, making this writer wonder if those accounts will just float around cyberspace forever.

Many people feel that there should be laws governing all digital assets in the same way that other personal property is currently legislated.  However, even though digital assets have become a big part of our lives, there are only five states that have even begun to legislate what happens to them after your death – Connecticut, Rhode Island, Indiana, Oklahoma and Idaho. 

Here’s a summary of what the current laws cover:

1.  Connecticut’s law, enacted in2005, only covers email.  That’s not too surprising considering that the explosion of social networking sites hadn’t occurred when the bill was being formulated.  Facebook didn’t start until 2004, when it was launched as a site for use only by students attending specific colleges and Twitter began in 2006.  The law states that an email service provider must give the executor or administrator of the estate access to or copies of the contents of the account if the deceased lived in Connecticut at the time of his death. 

2.  Rhode Island, in its 2007 law, also limited itself to email and is very similar to Connecticut’s.

3.  Indiana’s law focuses on electronically stored documents of the deceased.  This could include email as well as many other digital assets.  The 2007 law says that the “custodian” of the electronically stored documents will provide to the personal representative of the deceased’s estate (if the deceased was living in Indiana at the time of death) access to or copies of any stored documents or information. 

4.  Oklahoma’s 2010 law is much more comprehensive.  It says that the executor or administrator of an estate will have the power to “take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any email service websites.”

5.  Idaho’s law, which became effective in 2011, is virtually identical to that of Oklahoma.

On January 5, 2012, Senator John Wightman of Nebraska introduced a bill in his state legislature that would be similar to that of Oklahoma and Idaho.  However, according to Wightman, the methodology of how the government would access account information and forward it to an estate representative has not yet been determined.  In addition, several people have asked whether anyone but the owner of an online account should have the right to view and control its content.   Wightman agrees that the bill may have to “be modified in some way to take account of the privacy issues as to whether or not they’ll be able to view the content.” 

Why do you think so few states have tackled this issue so far?  Do you think your state should have legislation that would control access to your digital assets after your death?

To find out more about digital assets and what currently happens to them when someone dies, pick up a copy of our book, Grave Robbers…How to Prevent Identity Theft of the Deceased,   or check out the information at http://diesmart.com/

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