Delaware has become the first U.S. state to pass pervasive legislation redressing the tangled and ever-evolving issue of death in a digital age. What happens to email and social media accounts, or digital files, for instance, that subsist in the wake of the deceased?
Given that more and more people are living their lives online as opposed to on paper, the law concludes that “Delawareans’ digital legacies will be treated the same as the physical assets, documents and records left for their heirs.”
The primary directive of the bill, explains sponsor Rep. Darryl Scott, is to provide executors access to information, post-death, that many tech companies, including Twitter and Facebook, tend to withhold. In one instance, Scott said, a resident was denied access to her late husband’s email account -- which contained important financial documents -- due to the company’s terms of service.
But the fact that the bill not only refers to accounts but “digital assets” -- including audio and video files -- poses provocative distinctions between accessing information and owning it. Can such files, for instance, be inherited by heirs? Are they thus subject to the same estate taxes as physical property?
“This law has nothing to do with inheritance,” says estate planning attorney David Shulman, who advised and participated in the drafting of the law but noted he does not speak for the committee.
While it’s true that iTunes and World of Warcraft accounts, for instance, often represent substantial investments, this law does not change the ways in which ownership of these assets can and cannot be transferred after death, he said. That is largely determined by an individual company’s terms of service as well as local laws.
“This law doesn’t change property rights” for heirs, Shulman said, but moreover sets a new precedent for executors to gain access to critical online information, which could have previously amounted to a felony.
Nevertheless, Shulman acknowledges that questions surrounding the transfer -- and inevitable taxation upon -- digital assets need to be addressed. “The video files and audio files that people buy have value and are worth something,” he said. “They should be able transfer them.”
While laws are inevitably sluggish to keep pace with technology, the Delaware bill marks a step in this direction, he said. In granting fiduciaries access, it “gets people thinking about what these assets are. Hopefully, the legislatures will now follow up with trying to impose rules about how they can be transferred as well.”
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