Delaware Enacts Law Governing Access To Digital Records After Death

Privacy/Cyber Risk & Data Security

On August 12, Delaware Governor Jack A. Markell signed the Digital Access and Digital Accounts Act, the first law in the nation to comprehensively govern access to a person’s digital assets, including social media and email accounts, after the person dies or becomes incapacitated. Under the new law, a Delaware resident’s digital assets will become part of his or her estate after death, and these assets will be accessible to heirs to the same extent as the deceased person’s physical, tangible assets. Digital assets are defined broadly to include data, texts, email, audio, video, images, sounds, social media and social networking content, health care and insurance records, computer codes and programs, software and software licenses, and databases, along with usernames and passwords. The law expressly does not apply to digital accounts of an employer regularly used by an employee in the usual course of business. The law requires any company that controls a person’s digital assets to give the legal fiduciary for the deceased’s estate the usernames, passwords, and any other information needed to gain access to the digital assets upon a valid written request. Any contrary provisions in service agreements or privacy policies that limit a fiduciary's access to digital accounts are void, although the account owner can specify that the account should remain private after death. The law also grants the company controlling the digit assets immunity for complying with valid requests for account access. The new law takes effect January 1, 2015.