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New Delaware Law Eases Access to E-mail After Death

Information technology companies sometimes hinder estate executors and trustees from gaining access to a deceased person’s digital records and assets, as interpretations of existing law apparently lag behind innovations in technology.

In a poignant example of a digital terms-of-service agreement preventing a family’s access to the records of a deceased loved one, Yahoo! in 2004 refused a father’s request to access the e-mail account of his son, a Marine who died fighting in Iraq. To turn over the email to the family, the company insisted, would have been a breach of its terms of service, which prohibits Yahoo! from disclosing private e-mail communications under any condition.

In contrast, the U.S. Marine Corps promptly ships all of a fallen Marine’s belongings to next-of-kin. They make no distinctions between property that has been opened or unopened (such as packages and letters) in the Marine’s possession – everything goes to the family. Likewise, in estate law, executors of wills have long had unfettered access to the assets, accounts and records (including paper correspondence) of the deceased.

Some technology companies, however, insist that e-mail and social media accounts differ from non-digital assets, books and records (including paper correspondence) held by third parties, such as a bank, in the case of a safe-deposit account. The companies argue that digital communications are more private, more revealing and subject to a carefully drafted terms-of-service agreements that guarantee users’ privacy. 

Generally speaking, dead people have no right to privacy. With respect to the terms-of-service agreements, a successor in interest under the decedent’s will has the right to enforce any contract against the other party, including a waiver of any confidentiality provision in a terms-of-service agreement. Moreover, technology companies hold a decedent’s assets in the same manner that a bank holds their assets in a safe deposit box, to which the law has long provided the procedures for access.

Earlier this year, Delaware joined a handful of other states in enacting a statute extending basic estate administration principles in the digital age. Under the new law, the executor or other fiduciary of any estate administered in Delaware must be provided access to and control over the decedent’s various digital accounts after the submittal of a written request to account custodians (i.e. Google and Facebook). The executor will then be authorized, but not required, to transfer the various assets, including digital photographs, e-mail, books and other records consistent with the decedent’s will or as provided under the laws of intestacy for persons dying without a will.

The law does not affect estates administered outside of Delaware, even if the accounts in question are maintained by a technology company that happens to be incorporated in Delaware.

The Delaware law is modeled on a Uniform Fiduciary Access to Digital Assets Act (UFADAA) approved this summer by the Uniform Law Commission, a body formed by state governments to propose new legislation, which suggests other states may consider taking similar measures. In the meantime, anyone drafting a will should consider including a waiver of any confidentiality provision or privacy claim under any online agreement. Whether you are drafting a will or seeking access to estate assets as a fiduciary of an estate, lawyers who practice in estates and trusts and in technology law can help.   

For more information please contact Bill McComas at 410-583-2400 or mccomas@bowie-jensen.com.

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