Delaware first state to enact digital inheritance law

A bill recently passed in the state of Delaware would give family members the right to access a deceased person’s digital files.

The ‘Fiduciary Access to Digital Assets and Digital Accounts Act’, would give a person’s heir the right to access and gain legal control of all of the deceased’s devices and digital accounts.

Many people have wondered what happens to a person’s Facebook or Gmail accounts after they die. If they didn’t give their relatives their passwords (or leave them in their wills) the process of retrieving the digital assets of a person that has died has been somewhat complicated and in some cases the companies that stored that information have denied heirs access to the accounts.

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There have been cases where family members have tried to have Facebook accounts shut down but without a password that is nearly impossible. In other cases Facebook has even denied family members from accessing anything that wasn’t already tagged as ‘public.’

And then there are the ‘right to be forgotten’ issues (although in the case of a loved one that has passed away the traditional approach has been more along the lines of ‘gone but not forgotten’).

I can see why having a dead family member’s Facebook pages live on in perpetuity might be a bit uncomfortable for some people and they would rather the pages be taken down, but I can also see leaving a site up as a kind of memorial to their lives.

The tricky part is when it comes to things like emails, texts and other communications that the departed may or may not have wanted made public or even revealed to family members after their death. Of course, this isn’t a totally new problem (although this definitely puts an electronic twist on the issue). There have been many instances when a grieving spouse has uncovered letters or even books written by their late partners that made them cringe (supposedly there is a Mark Twain novel no one will ever read because his wife burned the manuscript after his death because she thought it was embarrassing).

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And there is the issue of turning over communications that involve third parties.

According to Jim Halpert director of the State Privacy and Security Coalition, “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased.

“This would include highly confidential communications to decedents from third parties who are still alive - patients of deceased doctors, psychiatrists, and clergy, for example - who would be very surprised that an executor is reviewing the communications.”

It is an interesting issue and I’m sure there will be controversy and debate about the implications.

Guy Wright

Guy Wright has been covering the technology space since the days when computers had cranks and networks were steam powered. He has been a writer and editor for many of the most influential publications over the years – publications that helped shape our current technological zeitgeist. He has lost count of the number of articles, blogs, reviews, rants, and books that he has published over the years, but he hasn’t stopped learning and writing about new things.


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