Digital Asset Law Breaking News: Personal Representative May Be Given Access to Decedent’s Email!

Digital Estate Planning: How To Organize All Your Digital ...

On October 16, 2017, the  Supreme Judicial Court of Massachusetts ruled favorably on a Personal Representative’s access to a deceased user’s online accounts and digital property (Ajemian v. Yahoo). This is the first reported case with respect to access to digital assets by a fiduciary.
When You’re Asked to Be a Personal Representative of an ...

The conundrum: Email are part of a deceased user’s estate.  But a personal representative (aka executor) can’t read them without violating Federal privacy or anti-hacking law.  The Ajemian case is the first to permit access and will empower fiduciaries though out the US.

10 Things You Need to Know

(1) This is the first case in the country to answer the specific question of “lawful consent” by a fiduciary under the Stored Communications Act (SCA).*

(2) SCA = protection of privacy.

(3) Privacy protections = significant obstacle for personal representatives trying to gain access to a deceased users online accounts and digital property, including and more specifically emails.

(4) When the SCA applies, the online company (think Yahoo, Google, Facebook, Microsoft…) is prohibited from disclosing the contents of electronic communications or files to anyone (this includes family members and fiduciaries) other than the user.

(5) SCA Exceptions = online company may voluntarily disclose such information, but IS NOT required.

(7) Voluntary disclosure is restricted unless a statutory exception under the SCA applies.**

(8) Enter the Lawful Consent Exception to the SCA.***

The text of the SCA does not explicitly answer whether a fiduciary of a deceased user may grant “lawful consent” on behalf of such deceased user in order for the online company to voluntarily disclose account contents. This is the first case to answer that question. This case answered that question by holding – a personal representative of a deceased user may provide lawful consent on the deceased user’s behalf in order for the online company to release the contents of a deceased user’s email account.

(9) Note – Ajemian means that the “lawful consent” exception to the SCA applies to personal representatives, and thus while the online company is not required to disclose the contents, the Court held that it may disclose.

(10) Enter RUFADAA (Revised Uniform Fiduciary Access to Digital Assets Act).  RUFADAA provides state law procedures for fiduciaries to request disclosure from online companies, including obtaining a court order if necessary.  38 states have a digital asset act (36 enacted RUFADAA). Massachusetts, whose law applied in the Ajemian, has neither. RUFADAA works best when certain “magic”words are in the relevant estate planning documents – Will, Trust and Power of Attorney.

Questions? Email me! Sasha@warddamon.com

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  • *SCA is found at U.S.C. §§2701 – 2712
  • **§2702(b) – Exceptions to the SCA.
  • ***§2702(b)(3) Lawful consent exception.
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