Monday, November 11, 2013
Seven states currently have laws granting fiduciary access to the online accounts of an incapacitated or deceased person, and at least eighteen other states are considering passing such a law. The Uniform Law Commission is also drafting a Fiduciary Access to Digital Assets model act.
These state laws granting fiduciary access may have a limited effect due to federal preemption or supremacy, especially the privacy protections under the federal Stored Communications Act. However, a court may conclude that state fiduciary laws, as well as the Uniform Law Commission’s model act, generally would not conflict with, or be preempted by, the Stored Communications Act.
Check out Jim Lamm’s Digital Passing Blog for background information on the Stored Communications Act, reasons why fiduciaries need access to online accounts, and his thoughts on federal preemption and supremacy.
See Jim Lamm, Thoughts on the Stored Communications Act, Federal Preemption and Supremacy, and State Laws on Fiduciary Access to Digital Property, Digital Passing, Nov. 4, 2013.