If You Die In Delaware, Your Heirs Can Get All of Your Digital Belongings

Delaware is now the first state to ratify a law that will grant heirs full access to the digital legacy of their deceased loved ones.

House Bill (HB) 345, entitled "Fiduciary Access to Digital Assets and Digital Accounts Act," ensures that digital assets and information will be every bit as available to estate planners as the physical heirlooms, documents, and other assets bequeathed after a death. The bill was signed into law last week.

"We need ready access to [digital information]," estate planning attorney Jim Lamm told me in a phone interview. Lamm has written extensively about the need for better estate laws on his blog Digital Passing, and actively participated in the drafting of the "Uniform Fiduciary Access to Digital Assets Act," the precursor to HB 345.

According to Lamm, HB 345 is by far the most comprehensive bill of its kind that exists in the United States, or any other nation for that matter. Several states have adopted piecemeal allowances for estate managers, but no bill has granted uniform access to all digital property, be it financial accounts, online profiles, gaming personalities, virtual real estate, cryptocurrency, iTunes libraries—the list of potential assets is endless.

"In some cases, people have virtual real estate worth thousands or even millions of dollars," Lamm pointed out.

Delaware's firm stand on the issue may well set off a domino effect both within the United States and abroad. "People are calling me like crazy," Lamm told me. He said that about 20 states are gearing up to introduce similar bills in the wake of Delaware's decision, and that the pace is picking up outside the US too.

"Canada is looking at this, and other countries as well, he added.

But before other states and nations can adopt similar legislation, a bundle of legal contradictions need to be ironed out. The Computer Fraud and Abuse Act, for example, made "unauthorized access" to personal computers and systems a criminal act.

"If I die, and my wife knows the password to my Facebook account and accesses it, that's a federal crime," explained Lamm.

As it currently stands, legally accessing the Facebook account of a deceased loved one requires contacting the company and providing a death certificate, among other evidence. But now, residents of Delaware are automatically entitled to that information, just as they would be entitled to the physical effects of a deceased person.

Facebook, Google, and Twitter haven't yet responded to HB 345, but this disjunct between Delaware's law and the federal stance on non-physical assets will have to be worked out over the coming months and years. Perhaps an even more daunting challenge is the expansion of similar laws to other countries. Even if the federal and state authorities square themselves, will international companies like Facebook be beholden to different laws in every country?

In this way, Delaware has created a bit of a legal minefield, but it's hard to argue against the state's choice to pioneer this legislation. No matter how uncomfortable it would be to have your mother browsing through your computer in the case of your death, it is better than being wholesale shut out of these digital realms.

Take the story of Karl Linn, for example, who was tragically killed in 2005 while deployed in Iraq. Linn's parents hoped to gain access to their son's email account, which was packed with pictures, schoolwork, and correspondence. Though the email provider empathized with the Linns, they were denied access.

There are thousands of similar stories across the world, no doubt. But now, at least, none of them will be from Delaware. What state will be next?