In an increasingly digital society, individuals store information online and occupy a social media presence more than ever.  Whether through Facebook or other social networking platforms, email accounts, online banking, music providers, or other digital outlets, society occupies and possesses vast digital property.  Many types of digital property are replacing—or have already replaced—outdated types of tangible personal property.  Further, unlike our friends and family, whose lives must, unfortunately, come to a halt, digital property can exist into perpetuity.  Because laws addressing digital property implications upon death cannot keep pace with society’s rapid technological revolution, digital estate law across the United States remains complicated and inconsistent.

This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications.  Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property.  Additionally, this Note highlights the importance of deferring to the decedent account holder’s intent when determining whether fiduciary access or control over account content is appropriate after death.  This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death.  This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.

Read the full Note here.