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Del.'s New Digital Estate Law Allows Account Access After Death

By Brett Snider, Esq. on August 21, 2014 | Last updated on March 21, 2019

Delaware is pushing estate planning into the digital sphere with a new law that allows loved ones to access online accounts after a person's death.

The Fiduciary Access to Digital Assets and Digital Accounts Act (HB 345) was signed into law by Delaware Gov. Jack Markell last week, broadening digital access for legal heirs. In a press release from the Delaware House Democrats, the bill was described as the "first comprehensive state statute dealing with the disposition of a decedent's digital assets in the nation."

But what will the law actually allow for digital estates after death?

Formal Request for Access to Accounts

Part of the problem of dealing with a person's digital estate once he or she has passed is the inconsistency between the major social media and email providers about how and when an account can be accessed. Twitter and Google may automatically deactivate an account after several months of inactivity, but a Facebook page may persist long after a user's death.

Some states have attempted to bridge the gap between these policies with "Facebook after death" laws, but none have been as comprehensive as Delaware's. The major impact of the act is to carve out a procedure by which executors of a dead person's estate can request access to any of the deceased's digital accounts or assets. After sending a request that complies with the law's requirements, a custodian for a digital service or account has 60 days to comply with that request.

If that fails, an executor can seek a court order to crack into the deceased's Facebook or Gmail accounts.

HB 345's Limitations, Opponents

It's worth noting that this law doesn't take effect until January 1, 2015. But even after it goes into effect, there are some limits to the access HB 345 provides.

A glaring one is that HB 345 only affects wills which are governed by Delaware's laws. It may sound like common sense, but if a decedent's will is governed by California law, then her heirs living in Delaware may not have digital access after death under Delaware's new law.

Some lawyers, however, are skeptical. One attorney with DLA Piper (which represents major tech companies like Google, Facebook, and Yahoo!), told Ars Technica that he opposes the new law because it may expose private third-party communications to heirs.

With HB 345 passed, next year these privacy fears may be tested.

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