WHILE TECHNOLOGY is constantly advancing in an attempt to improve our lives, a concession that we make is our privacy. Just how much of our information are we willing to share, with whom and when? Since much of what we do on our phones, laptops and computers is in the digital realm, the legislature and the courts in the US are now grappling with a new challenge: what happens to one's digital assets on death? In an effort to protect the privacy of the user, many tech companies are struggling with just how much information should be shared with the fiduciaries of a decedent.
So far, 41 US states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (the Uniform Law). In September 2016, New York added art.13-A to its Estates, Powers and Trusts Law (the Estates Law). This is largely based on the Uniform Law.
Despite the enactment of the Estates Law, which addresses the ability of a fiduciary to access digital assets, tech companies are still seeking court orders before releasing digital information to fiduciaries. At the time of writing, there have been at least four reported cases that address the access to digital assets of a decedent: three in New York, and another currently ongoing in Massachusetts. These cases address 'electronic communication'. If a digital asset is classified as an electronic communication, the fiduciary will need to provide proof of a user's consent (usually in a will) or a court order in order to obtain access.
However, if the will is silent, what kind of digital assets should fiduciaries have access to? Currently, everything except the content of electronic communications, unless there is a terms of service agreement that provides otherwise.
Recent Case Law
In 2019, in Matter of Swezey, the petitioner sought access to photographs stored in his deceased spouse's Apple iCloud account after the decedent died unexpectedly at the age of 45 with two surviving minors. The New York County Surrogate's Court (the Court) held that the photographs were not electronic communications and that no lawful consent was required for disclosure under the Estates Law. Interestingly, before applying the Estates Law, the Court explored the relationship between the petitioner and the decedent, stating that: their computers were adjacent to each other at home; they did not attempt to shield access to digital assets from one another; the petitioner viewed the images on the decedent's computer; and together they used the photos to make holiday cards. Despite analysing their lifestyle, the Court ultimately held that the petitioner had the right to access the photos as a fiduciary because they were not electronic communications.
In 2017, the Court in Matter of Serrano ruled that if the information regarding the user's contacts includes 'information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person', it is a catalogue of electronic communication, and not electronic communication. Similarly, the Court determined that a calendar is not electronic communication because there is no transfer of information between parties.
Also in 2017, in Matter of White, the petitioner requested access to the decedent's Gmail account to obtain information about assets that he needed to identify and administer. While the Suffolk County Surrogate's Court in New York held that Google was required to disclose the decedent's 'contacts information stored and associated with the email account', it erred on the side of privacy and held that greater access could be granted later, but only if warranted.
To address these new challenges, many companies have created online tools that allow trusted individuals to gain access to an account after the user dies, such as Facebook's 'legacy contact' and Google's Inactive Account Manager. While some companies have attempted to grant access to users' accounts, not all companies provide such options.
US law may be starting to catch up to technology. However, discussions about access to and disposition of digital assets should be held early on during estate-planning conversations with clients, and carried into the necessary documents, to ensure that fiduciaries and loved ones are granted the intended amount of control.
 'Electronic communication' is defined as 'any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce', with exceptions (18 USC§ 2510 ; the Estates Law 13-A-l [k]).
 New York Law Journal (NYLJ), 17 January 2019, p.23, col.3 [Sur Ct, New York County 2019]
 56 Misc. 3d 497 [Sur Ct, New York County 2017] 4 NYLJ, 3 October 2017, p.25, col.1 [Sur Ct, Sullolk County 2017]
 NYLJ, 3 October 2017, p.25, col.1 [Sur Ct, Sullolk County 2017]
This article appeared in the July 2019 edition of STEP Journal (Volume 27, Issue 6) on page 45. Reprinted with permission from STEP Journal.