A Call for Legislation to Permit the Transfer of Digital Assets at Death

• Author: Tyler G. Tarney
• Position: Will receive his J.D. from Capital University Law School in May 2012
• Pages: 773-802

A CALL FOR LEGISLATION TO PERMIT THE TRANSFER OF

DIGITAL ASSETS AT DEATH

TYLER G. TARNEY*

I. INTRODUCTION

“A quiet revolution is quickly coming to the probate and estate

planning world.”1 The Internet has fundamentally changed the way society

communicates and expresses itself,2 and there is now tremendous value

lying in one’s e-mails, social networking accounts, blogs, and other digital

assets.3 Younger generations that embraced the Internet and created this

value are getting older and confronting death.4 Unfortunately, the same

technologies that are driving the digital age are creating new legal

problems for estate planners.5

As society’s online presence becomes increasingly complex, protection

of online assets at death is an emerging concern.6 “[F]amily members,

estate planning attorneys, and . . . service providers are increasingly

grappling with what happens to [individuals’] digital information when

[they] die.”7 “In one form or another, the right to pass on property to one’s

family . . . has been part of the Anglo-American legal system since feudal

Copyright © 2012, Tyler G. Tarney.

* Tyler Tarney will receive his J.D. from Capital University Law School in May 2012.

He received his B.S. in Economics from The Pennsylvania State University in May 2009.

Tyler would like to thank Professor Susan Looper-Friedman, Professor Donald Hughes, and

Cris Thomas for their invaluable assistance in writing this article.

1 Charles Herbst, Death in Cyberspace, 53 RES GESTÆ 16, 16 (Oct. 2009).

2 Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921,

924 (9th Cir. 2007).

3 See Dennis Kennedy, Estate Planning for Your Digital Assets, ABA L. PRAC. TODAY

(Mar. 2010), http://www.abanet.org/lpm/lpt/articles/ftr03103.shtml.

4 Herbst, supra note 1, at 16.

5 Justin Atwater, Who Owns E-Mail? Do You Have the Right to Decide the Disposition

of Your Private Digital Life?, 2006 UTAH L. REV. 397, 397 (2006). See also Fair Hous.

Council, 489 F.3d at 924.

6 See Herbst, supra note 1.

7 Atwater, supra note 5, at 397.

774 CAPITAL UNIVERSITY LAW REVIEW [40:773

times.”8 Despite this growing value of digital assets, given the current

state of the law, “[s]imply leaving cyber property in a will . . . is often

going to be inadequate.”9

The traditional understanding to keep unique, complex passwords for

each account and to change them frequently becomes counterproductive

and difficult to manage as the number of accounts rapidly increases.10

When heirs desire access but are not in possession of log-in information,

service providers are “in exclusive control of the account content.”11

Without a remedy, heirs are forced to consult the provisions in the terms of

use regarding the disposition of the account holder’s account contents at

death.12 However, the terms drafted by service providers are highly

restrictive to maintain the privacy of their users.13

Considering the current complexities in retrieving digital assets at

death, legislation mandating transferability and timely compliance by

service providers upon legally-recognized authorization of the decedent is

necessary. Part II of this article underlines the value in digital assets and

the policy concerns motivating service providers in drafting these

restrictive terms, making the disposition of these assets at death so

complex. Part III ex amines the solu tions offered by st ate statutes, ser vice

providers, and the current market, and explains how these solutions are

insufficient and shortsighted. Ultimately, Part IV explains why a uniform

law permitting the transferability of digital assets upon legally-recognized

intent is advantageous and how it resolves the competing concerns of

account users and service providers.

8 Hodel v. Irving, 481 U.S. 704, 716 (1987). See also Atwater, supra note 5, at 397

(Traditionally, “[o]ne of the most powerful rights granted to citizens of the United States is

the right to dictate the disposition of their prop erty at death”).

9 Herbst, supra note 1, at 23.

10 Id.

11 Jonathan J. Darrow & Gerald R. Ferrera, Who Owns a Decedent’s E-Mails:

Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. LEGIS. & PUB. POL’Y,

281, 305 (2006–2007).

12 Id. at 291 (“Provisions addressing the disposition of an . . . account holder’s account

contents . . . are particularly relevant in the case of death . . . .”).

13 See infra Part II.C.