Saturday, December 31, 2016
Matthew W. Costello recently published an Article entitled, The “PEAC” of Digital Estate Legislation in the United States: Should State “Like” That?, 49 Suffolk U. L. Rev. 429 (2016). Provided below is an abstract of the Article:
This Note explores the legal implications of recent digital assets legislation, suggested model legislation, and the future for digital estate planning generally. First, this Note delineates the current state of federal law governing digital assets. Additionally, this Note considers the consequences of Terms of Service (TOS) contracts in relation to the preservation of and access to digital account contents. Next, this Note tracks the history and development of state legislation concerning postmortem digital assets. Further, this Note surveys the development and implementation of suggested model legislation.
This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. Additionally, this Note highlights the importance of deferring to the decedent account holder's intent when determining whether fiduciary access or control over account content is appropriate after death. This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.