New Laws for Facebook After Death

Posted November 16, 2012 in Estate Planning Internet Law by


Facebook, Twitter, Gmail, Paypal, investment accounts, frequent flier miles, LexisNexis access — consumers today take advantage of a wealth of online services across a broad swath of industries. But what happens to all those accounts, filled with photos, memories, insights and money, after a person dies?

The issue is doubly important for services like Paypal or online bank accounts that contain actual cash assets, but families can gain real or emotional value from the non-monied contents of Facebook or email accounts as well. How do states and service providers decide who can access what, short of a court order for every single circumstance that an heir might have a valid reason to log into Aunt Myrtle’s Twitter account?

In an attempt to clear up conflict and confusion, the Uniform Law Commission, a group that recommends standardized laws for states, is planning to draft model legislation to address social media accounts and digital assets.

“The idea is to get ahead of the states that are starting to put in place laws that deal with third party access to accounts and email saved in the cloud,” says ULC Senior Legislative Counsel and Legal Counsel Eric Fish. “We’re looking at how to bring in management of virtual assets, how to copy and delete those assets and how to terminate or otherwise hand over accounts of somebody that’s deceased.”

“Our goal is to give states a manageable and understandable set of rules that can be enacted everywhere,” the attorney says. If most or all states have the same or similar laws on virtual asset management, it can help companies better craft their terms of service to comply with those laws, and help prevent conflicts that end up before a court, especially as we store more and more personal information and assets on the cloud.

“In a few years, there will be more litigation,” Fish notes. “It’s important to have a statutory solution now before it gets out of hand.”

The committee to draft the legislation will start meeting this month and expects to have something finished and approved for states to consider by July 2014.


Patchwork Solutions

In the meantime, a patchwork of state laws and company policies govern who can access people’s accounts after they die. In many cases posthumous accounts are governed under the 1986 Electronic Communications Privacy Act, which blocks disclosure of communications without a court order. Needless to say, technology and how we use it has changed since 1986. Since then, only five states have passed specific laws to deal with digital assets and accounts.

Connecticut was the first, in 2005, with a statute that governs how beneficiaries can gain access to their deceased relatives’ email accounts. Idaho, Indiana, Oklahoma and Rhode Island have since passed their own laws, covering varying degrees of specificity. Oregon, Nebraska and at least four other states are also considering laws on how to turn over online accounts to a person’s heirs.

Different services also have their own rules about how to handle accounts of dead people. Facebook will turn a page into a memorial site if they are presented with proof of death, but will not give anyone access to the account unless compelled by law. Some email services will send CDs with data from an account to next of kin, but actual passwords and full access are much more difficult to obtain. In 2005, Yahoo mail turned over an account password to the family of a marine killed in battle, but only after they were ordered to do so by a Michigan court.

For now, people should include account passwords, instructions on how to handle them, and how to distribute any online assets in their will, just as they include instructions for any other property. There are also a number of websites that offer services to help people plan for digital death. Consult with an estate planning attorney to be aware of all your options, and make life easier for your heirs once you’ve shuffled off it.

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