Tracking Digital Afterlife Legislation

We’re about to hit a full country enactment of the RUFADAA or its equivalent with just a handful of states left anticipating introductions.  In just the last week we saw an introduction in Maine and an enactment in South Dakota – if that’s not rapid progress, we don’t know what is.

While this isn’t news to many, it’s still pretty incredible to reflect on the fact that only in the last decade has the concept of “digital assets” surfaced; accounts, files, devices, hardware, property and a plethora of other things that fall into the category of that which is digital and of sentimental or monetary value.  Digital assets can include a host of things that have become worked into the fiber of our day to day lives, so much so that they might be completely overlooked when going through the estate planning process.  For example, someone may have music housed on Soundcloud or a book waiting to be published sitting on Scrivener, and attorney’s may not even think to ask their clients about these platforms, while their clients are likely completely oblivious to the notion that these things factor into their collection of assets at all.

Here’s a global snapshot from 2015 created by an agency to make the impact and growth of digital a little more real…and, yes, it’s now 2017…

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Digital Estate Management Gone Wrong

We’re starting to hear more and more cases referencing issues in the management of a loved ones estate due to an inability to access their digital accounts.  CBS Miami just covered a case where a family lost a lot in the death of their father as they were unable to access his business assets housed in his Yahoo accounts.  There are endless accounts of people receiving eerie after death posts in their Facebook feeds from deceased friends, and the stories of digital divorces gone sour are only escalating.  All of these cases lead to one important conclusion – we live in a digital era and the management of these assets needs to catch up.

The RUFADAA

Although it’s traditionally the case that legislation cannot keep up with technology, this particular area of estate management is truly catching up.  In 2014 the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was substantiated and has been enacted in 23 states and introduced in 17 since the beginning of this year alone. It was revised in 2015 and is now the RUFADAA.

“This act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”

Given this legislation, it is in some cases actually against the law for someone to access a deceased individual’s accounts if not explicitly declared in that person’s after death directives.  This means that deceased individuals loved ones can actually come into trouble with the law just by accessing accounts even when explicitly given a list of passwords.

Fortunately, these laws were intended to protect the privacy of individuals and prevent identity theft of after life accounts and assets. But in order for these laws to be able to fulfill their intended purpose, attorneys need to be aware of and tracking the legislative progression of RUFADAA.

The Uniform Law Commission does a wonderful job of maintaining the introductions and enactments of the RUFADAA and updates their online platform regularly. The ULC maps out the laws journey of progression throughout, what will hopefully be, the entirety of the United States in the very near future.

Here’s a snapshot of the landscape earlier this week:

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As noted above, there has since been and introduction and enactment.

It’s the job of attorneys to maintain awareness of which states these laws are active, in order to ensure that they are providing their clients with not only the best practices but also with legal protection.