Dead and Online: Digital Estate Planning

This past summer, PBS’s Newshour ran a piece titled “Dead and online: What happens to your digital estate when you die?” This short segment discussed the challenges of recovering the digital assets of your loved ones after they pass on. This is not a common subject in estate planning for a number of reasons. First, it is not a traditional part of the practice for a group of attorneys that tends to be fairly rooted in tradition.

Second, it is not something that clients often raise. Until recently, social media and technology generally were seen as the purview of the young, so planning for death and using the web were not seen as particularly related, and there has been very little conversation about the issue. Moreover, many do not think of their online assets as assets. Many of these accounts function so simply that they become a part of our lives, operating in the background.

Third, there is very little law providing options for people. As the Newshour piece explained, only a handful of states have passed digital estate planning laws. Most of these accounts are governed by long terms of service agreements that are so dense and legalistic that even estate planning attorneys struggle to get through them. What’s more, these “agreements” can be changed unilaterally at any time by the company providing the lawsuit, and the user (and her attorney) have essentially no control over the those terms.

Regardless of these challenges, digital estate planning will only grow as a part of the estate planning practice as more and more people live more and more of their lives online.