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By Magdaline Marc

Have you ever thought about what would happen to your email and social media accounts when you die? Or if you are declared incapacitated?  Would you want anyone to have access to your online accounts? If so, to whom would you grant access to?  More importantly, can the service provider give others access to your account without your consent?  These are the new waves of challenges that estate-planning attorneys are facing when dealing with the impact of digital assets.[1]  A digital asset is “an electronic record in which an individual has a right or interest.”[2] A digital asset does not include “an underlying asset or liability unless the asset or liability is itself an electronic record.”[3] Therefore, the electronic record must be information that is stored in a way that is related to “technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.”[4] This includes email accounts, online bank accounts, domain names, intellectual property, digital music, entertainment, Facebook, Instagram, Flickr, Photobucket, even commercial loyalty points and awards, and many more.[5]

One may wonder why access to these digital assets is necessary. It is because these digital assets may have economic or non-economic values, and maybe even both.[6]    The value of digital assets need to be determined if an estate is subjected to federal or state estate taxes and need to be included in the estate tax return.[7] Some digital assets, like Photobucket, which may not have an economic value, may have a great amount of sentimental value perhaps because it contains precious photographs.

The need and desire to have access to digital assets has become a new challenge for legislatures, courts, attorneys, and service providers. Under the Stored Communication Act and the Computer Fraud and Abuse Act, the unauthorized access of computer systems and certain types of protected data is prohibited.[8]  While these two federal statutes prevent disclosure of access while the owner of the digital asset is alive, they do not provide any provisions for when a person dies or is incapacitated.[9] To address these new challenges, the Uniform Law Commission (ULC) successfully established the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). RUFADAA was enacted in thirty-four of the fifty States, including Florida.[10] Section 740.001 of the Florida Statute created the Florida Fiduciary Access to Digital Assets Act on July 1, 2016.[11] The first objective of this Act  is to provide fiduciaries, which include personal representatives, guardians, agents acting under powers of attorney, and trustees, with the legal authority to manage digital assets and electronic communication in the same capacity that they manage tangible assets and accounts.[12] The second objective of this Act is to provide custodians of the digital assets and electronic communications, such as Yahoo, Facebook, Google, the legal authority they need to interact with fiduciaries of their users while abiding by the user’s privacy expectations.[13]

The Florida Fiduciary Access to Digital Assets Act is very broad and has a general approach to the issue of digital assets of a deceased person. There have yet to be any cases challenging this Act or that have required the courts to provide further interpretations. There is no doubt that we will see future litigation arising from the Florida Fiduciary Access to Digital Assets Act, as it is the first of its kind to allow an individual to specify whether his or her digital assets will be preserved, distributed to heirs, or destroyed upon death.[14]  Digital assets can be valuable and worth including in estate planning.

[1] Michael D. Walker, The New Uniform Digital Asset Law: Estate Planning and Administration in the Information Age, 52 51 REAL PROP., TR. & EST. L. J.  51, 52 (Spring 2017).

[2] Id. at 53.

[3] Id.

[4] Id.

[5] Id. at 54.

[6] Id.

[7] Id.

[8] Legis. Bill Hist. FL S.B. 494 (2016).

[9] Walker, supra note 1, at 52.

[10] Id. at 52; Legis. Bill Hist. FL S.B. 494 (2016).

[11] Legis. Bill Hist. FL S.B. 494 (2016).

[12] Legis. Bill Hist. FL S.B. 494 (2016).

[13] Id.

[14] Id.