Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Saturday, August 23, 2014

Questions Remain in Delaware's Digital Asset Law

Computer 2

Last week Delaware Governor Jack Markell signed into law legislation permitting Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the same way they would be given access to physical documents.  Yet many people do not realize that our Twitter, Facebook, and email accounts are not our only online assets. 

The new Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to family and friends after death.  While the bill broadly states digital assets include “data, audio, video, images, sounds, computer source codes, computer programs, software, software licenses,” the law also states these assets can be controlled by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement (EULA). 

I have previously stated that the Delaware statute does not override this feature of Amazon’s, or most, EULAs, which are protected by other forms of federal law.  The bill is not designed to change an asset you could not transfer into one you can. 

Although tech companies have been dealing with some of the issues surrounding the accounts of the deceased, they have not specifically addressed the effect of EULAs on the fate of any products purchased with those accounts after someone has passed.  For now, estate planners are coming up with creative solutions.  Some planners suggest setting up a trust and using it to purchase digital assets.  In naming themselves and children as trust beneficiaries, they can pass down e-books or music without breaking any ban on third party transfers.

See Ariel Bogle, Who Owns Your iTunes Library After Death? Slate, Aug. 22, 2014.

Special thanks to Howard M. Zaritsky for bringing this article to my attention.

http://lawprofessors.typepad.com/trusts_estates_prof/2014/08/questions-remain-in-delawares-digital-asset-law.html

Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink

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