Should your family have access to your Facebook after you die? Delaware thinks so


In this day and age, we leave such a strong digital imprint while we're alive that we have to wonder what happens to it all when we're no longer here. Will other people be able to access it? Does it get deleted forever? A new state law will try to answer these questions.

Delaware has become the first state to give families access to their deceased or incapacitated loved ones' digital assets with a new law. Under House Bill 345, the "Fiduciary Access to Digital Assets and Digital Accounts Act," the digital legacies of Delaware residents will be treated the same as physical assets, documents and records that were left behind for heirs and executors.

"As we conduct more of our professional and personal business online, we must also change our laws to match the reality of how people live in the 21st Century," said Delaware Gov. Jack Markell, who signed the bill into law last week. "This legislation will help our laws keep pace with changing technology and forms of communication."

Under this new law, digital assets are now a part of a person's estate when they die. That includes email, cloud storage, social media accounts, health records, content licenses and databases. The providers of these digital services, such as Facebook, Google and Dropbox are now required to give control of these digital assets to the legal executor of the deceased person's estate. The law also applies when an individual becomes incapacitated.

This new law comes off the heels of the Uniform Law Commission, a national law group that aims to have uniformity in state legislation. Approval of the Uniform Access to Digital Assets Act was passed in July. The act is essentially the same as Delaware's law and serves as a model for state legislatures to follow in drafting their own digital inheritance laws in the future.

Gaining access to loved ones' digital assets has been a struggle for many for several years. The family of a 20-year-old U.S. Marine killed in Iraq wasn't allowed to access his Yahoo email account in 2004. Facebook initially denied the mother of a 22-year-old man killed in a motorcycle access to his profile in 2005, although the social network later gave her 10 months of access. Facebook also denied a Virginia couple access to the account of their 15-year-old son who had taken his own life when they wanted to search his profile for clues into his death in 2011. 

Before Delaware's landmark legislation, a few states had already passed measures to enable heirs and executors to access the digital assets of the deceased. These include Connecticut, which allows access to or copies of emails, Nevada, which gives the "personal representative" of the deceased the power to "direct the termination" of online accounts, and Virginia, which allows a "personal representative of a deceased minor" to take on the user agreement with the provider to get access to "communications and subscriber records."

Many tech companies, such as Facebook, Google and Twitter, are incorporated in Delaware, but the new legislation does not affect them, as Ars Technica points out. It only applies to individuals whose wills are governed by Delaware law.

However, there isn't widespread support for this new measure just yet. Jim Halpert, head of global law firm DLA Piper's U.S. Privacy & Security practice, said he opposes the law.

"This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased," he said.

As with most new laws, the debate regarding digital inheritance legislation is sure to rage on.

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