Minors and Digital Asset Succession

• Author: Natalie M. Banta
• Position: Associate Professor, Drake University Law School
• Pages: 1699-1746

1699

Minors and Digital Asset Succession

Natalie M. Banta*

ABSTRACT: Minors who die in the United States hold a property interest in

an asset that did not exist when the law established 18 as the age of legal

capacity to devise. These assets are digital assets: email, social networking,

documents, photos, text messages, and other forms of digital media. Minors

use these assets with a fluidity and ease unrivaled by older generations. Under

the current law, minors have no right to decide what happens to their digital

property at death. Despite the fact that minors have the capacity to contract

with online businesses, make health care decisions, marry, have sex, and seek

employment, minors are denied one of the most basic rights of property

ownership—the right to devise. This Article is the first to explore how minor

capacity law should change to accommodate the changing nature of property

and grant minors the right to devise their digital assets. It explores historical

capacity standards imposed upon minors in order to own and use property

and argues that these standards are no longer adequate to regulate digital

assets. It demonstrates how applying succession law instead of an arbitrary

age requirement safeguards minors’ interests, protects property and privacy

rights, and promotes the freedom of succession. This Article argues that

granting minors the ability to devise digital assets is a logical evolution of

minor capacity standards seen in other areas of the law. Granting minors

capacity to devise their digital assets promotes minors’ autonomy and their

dignitary interests in their expressions of identity on social media. It has been

40 years since we have considered the age of legal capacity to devise property

and with the proliferation of digital assets, the time is ripe for a reassessment

of minors’ capacity to devise digital property.

I.INTRODUCTION ........................................................................... 1700

II.MINORS’ CAPACITY STANDARDS .................................................. 1705

A.THE CHANGING AGE OF MAJORITY ......................................... 1705

B.MINORS’ RIGHTS UNDER CONTRACT ...................................... 1710

C.MINORS’ PROPERTY OWNERSHIP ............................................ 1713

*

Associate Professor, Drake University Law School. I would like to t hank the participants in

the Visiting Scholars Exchange at Marquette Law School for their helpful feedback on this Article.

1700 IOWA LAW REVIEW [Vol. 104:1699

D.NON-TESTAMENTARY ACTS AND NON-PROBATE

TRANSFERS ........................................................................... 1718

III. MINORS’ CAPACITY IN OTHER AREAS OF LAW ............................. 1719

A.CHANGING RIGHTS OF MINORS .............................................. 1720

B.INFANCY DOCTRINE AS APPLIED TO DIGITAL ASSETS ............... 1723

C.MATURE MINOR DOCTRINE AS APPLIED TO DIGITAL

ASSETS .................................................................................. 1726

D.CAPACITY TO CONSENT TO SEX AND MARRIAGE ...................... 1729

IV. SUCCESSION LAW SAFEGUARDS MINORS ..................................... 1731

A.TESTAMENTARY CAPACITY ..................................................... 1731

B.UNDUE INFLUENCE, FRAUD, AND SLAYER RULES ...................... 1734

V.POLICY INTERESTS FAVOR DIGITAL ASSET SUCCESSION .............. 1739

A.BEST INTEREST OF CHILD ...................................................... 1741

B.SELF DETERMINATION ........................................................... 1743

C.PRIVACY ................................................................................ 1744

VI. CONCLUSION .............................................................................. 1745

I. INTRODUCTION

On average about 16,000 teenagers die in the United States each year.1

The 14 teenagers who were killed in a school shooting in Parkland, Florida,

on February 14, 2018 are a testament to the tragic and sobering ways that

minors unexpectedly and prematurely die in our nation.2 As of now, minors

do not have the right of succession, that is, they are legally incapable of

deciding how their property is distributed at death. The law governing

minors’ legal capacity to devise property is based on precedent that extends

into the early 19th century and has been relatively unchanged in our nation.

For many of the 16,000 teenagers who die each year their inability to devise

property will not be problematic. Most minors do not own significant property

interests, and if they do, the default rules of intestacy laws operate to give their

property to their parents, which is probably what most minors would want

1. ARIALDI M. MINIÑO, NAT’L CTR. FOR HEALTH STATISTICS, DATA BRIEF NO. 37, MORTALITY

AMONG TEENAGERS AGED 12–19 YEARS: UNITED STATES, 1999–2006, at 1 (2010), https://

www.cdc.gov/nchs/data/databriefs/db37.pdf.

2. Eric Levenson & Joe Sterling, These Are the Victims of the Florida School Shooting , CNN,

https://www.cnn.com/2018/02/15/us/florida-shooting-victims-school/index.html (last updated

(Feb. 21, 2018, 11:56 AM).

2019] MINORS AND DIGITAL ASSET SUCCESSION 1701

anyway.3 But minors’ property interests are changing in the digital world

because they hold a significant number of digital assets.

Minors who die in the United States hold a property interest in assets that

did not exist when the law established 18 as the age of legal capacity. The

majority of minors own digital assets—email, social networking, documents,

photos, text messages, and other forms of digital media.4 Minors’ digital assets

hold a treasure trove of information about their daily lives, information and

memories that would be much more valuable to surviving friends and families

if a minor were to die as well as information that perhaps a minor would prefer

to be deleted upon her death.5 Children’s toys are becoming more interactive.

The toys respond to a child’s questions, tell jokes, listen and create a record

of interaction with the child as soon as they can talk.6 The category of digital

assets that minors use, control, and create is only going to increase in the

coming years as new toys, apps, and forms of entertainment and education for

minors are developed.

Under the current law, minors have no right to decide what happens to

their digital assets. They lack legal capacity to execute a testamentary

document that would have controlling effect upon their death. Giving minors

the right of succession over their digital property gives them the ability to

decide whether these assets should be deleted or transferred at their death

and who should be able to obtain access. In many cases, minors might choose

their parents, but in some situations, minors would choose someone else.

Granting the right to devise digital assets gives a minor the power to choose.

Minors’ inability to devise digital assets needs to be reexamined in light

of the prevalence of digital assets and minors’ command and fluency in

understanding the nature of digital assets. From a young age, children

become proficient users of new technology. These “digital natives,” or

children that grow up in the digital age, have different expectations relating

to their digital property and a significant amount of familiarity with digital

assets throughout their lives than the generation before them. According to

Pew Research Center, “[n]early two-thirds of youth and parents agree that the

3. Intestacy law is based on the presumed intent of a testator and tries to do what an

ordinary testator would do if she had executed a testamentary instrument. See ROBERT H. SITKOFF

& JESSE DUKEMINIER, WILLS, TRUSTS, AND ESTATES 65 (10th ed. 2017).

4. See, e.g., Monica Anderson & Jingjing Jiang, Teens, Social Media & Technology 2018, PEW

RES. CTR. (May 31, 2018), http://www.pewinternet.org/2018/05/31/teens-social-media-

technology-2018 (“Some 45% of teens say they use the internet ‘almost constantly,’ a figure that

has nearly doubled from the 24% who said this in [a study from] 2014-2015.”).

5. Imagine a scenario where a closeted gay or trans teenager is exploring their identity o n

social media. If that teenager dies, their family could decide to destroy their posts and pictures at

their death, and that might be expressly against what the teenager would have wanted.

6. Zoë Corbyn, The Future of Smart Toys and the Battle for Digital Children, GUARDIAN (Sept.

22, 2016, 6:00 AM), https://www.theguardian.com/technology/2016/sep/22/digital-children-

smart-toys-technology.