February 14, 2012
Managing a Deceased Loved One's Digital Assets
Twenty year old Anthony “TJ” Cannata posted a picture of himself on his Facebook page before killing himself. The picture showed Cannata holding a gun to his mouth. Cannata’s mother, Robin, had her boyfriend contact Facebook the day of Cannata’s death to “report suicidal content” on Cannata’s Facebook page. The following month, Robin sent an email to Facebook asking it to remove the picture from Cannata’s Facebook page. Facebook removed the image a few days later.
As more people use Facebook and other social media sites, states are having an increasingly difficult time grappling with issues regarding posthumous management of these accounts. Obviously, state probate laws were not designed to include the digital assets available today. Several states have attempted to tackle the issue of managing digital assets posthumously, but many social media sites have users agree with the site’s terms of service which typically dictate how a user’s account is affected following the user’s death. For example, Facebook’s user agreements and privacy policies generally forbid the company from “providing access to any person who is not an account owner.”
Nebraska recently considered a bill that deals with an individual’s digital affairs following the individual's death; the bill suggests that digital assets should be dealt with differently than other end-of-life issues. Nebraska modeled its bill after bills recently passed in Oklahoma and Idaho that allow an executor of an estate who has proper authorization the ability to “take control of, conduct, or terminate” the decedent’s online accounts.
For more information on laws regarding digital assets, see Steve Eder, Death Pose Test for Facebook, The Wall Street Journal, Feb. 11, 2012.
Special thanks to J. Barrett Shipp (associate, Heinrichs & De Gennaro, P.C., San Antonio, Texas) for bringing this article to my attention.
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