May 24, 2022

Volume XII, Number 144

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May 23, 2022

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You Can’t Take It with You (or Can You?): Death and “Digital Assets”

“When I’m gone, what will happen to my social media profiles?” The increasing use of digital accounts has resulted in a search for answers to this and similar questions, with the goal of reaching an appropriate balance of probate considerations and privacy and cybersecurity laws. The Uniform Law Commission (ULC) weighed in with its proposed solution to the issue of access to a deceased or incapacitated person’s “digital assets”—e.g., email accounts, social media profiles, digital photos and videos, and other electronic records—with its recent approval of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which is a model law that must be adopted by a state to become effective.

The ULC’s approach to the issue focused on whether a fiduciary would have access to tangible assets. If so, the fiduciary should be granted authority to access, control, or copy comparable digital assets. The UFADAA applies to certain fiduciaries acting in their fiduciary capacity and covers electronic records; it excludes underlying assets or liabilities “unless the asset or liability is itself an electronic record.” Ultimately, the UFADAA defers to the digital account holder’s intent, including his or her desire to keep certain digital assets or accounts private after the holder’s death. This intent should be expressed in a written will, trust, or similar document or online through an “affirmative act separate from the account holder’s assent to the other provisions of the terms-of-service agreement.” Under the UFADAA, a terms-of-service agreement that limits a fiduciary’s right to the digital assets of an account holder may be void as against public policy in the absence of this type of affirmative act.

If the UFADAA gains momentum, service providers should dust off their terms of use and consider how to account for users’ “affirmative acts” to show intent to withhold access to digital assets.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume IV, Number 204
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About this Author

Doneld Shelkey, Technology attorney, Morgan Lewis
Partner

Doneld G. Shelkey represents clients in global outsourcing, commercial contracts, and licensing matters, with a particular focus on the e-commerce and electronics entertainment industries. Doneld assists in the negotiation of commercial transactions for domestic and international manufacturers, technology innovators, and retailers, and counsels clients in the e-commerce and electronics entertainment industries on consumer licensing and virtual property matters.

617 341 7599
Eric Pennesi, Morgan Lewis, Technology attorney
Associate

Eric J. Pennesi focuses his practice on technology, outsourcing, and commercial transactions. As part of his practice, Eric drafts and negotiates a broad range of agreements in matters including software licensing, e-commerce, data licensing and subscriptions, consulting and services, manufacturing and supply, and strategic alliances and joint ventures.

412.560.7414
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