Ride the Lightning

Delaware Adopts Model Law Giving Executors Broad Control of Digital Assets

August 25, 2014

Last week, as Ars Technica reported, Delaware became the first state to enact a law that ensures families’ rights to access the digital assets of loved ones during incapacitation or after death.

The new law is called the “Fiduciary Access to Digital Assets and Digital Accounts Act,” and gives heirs and executors the same authority to take legal control of a digital account or device, just as they would take control of a physical asset or document.

Earlier this year, the Uniform Law Commission, a non-profit group that lobbies to enact model legislation across all jurisdictions in the United States, adopted its Uniform Fiduciary Access to Digital Assets Act (UFADAA). Delaware was the first state to make the UFADAA a law.

There are a hodgepodge of digital assets laws across the state and they are not as broad as the Delaware law. This is an important first step and I hope the other states will start to follow Delaware's lead.

The new law states in part:

A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.

Typically, when a person dies, access to a digital service officially dies with them. Even giving your password to your spouse or a trusted loved one is forbidden under Facebook's terms of service which say: 

You will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission.

Way to go Delaware!

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