The concept of "digital inheritance" is a relatively new legal term that refers to the transfer of rights to digital assets. These assets are becoming increasingly valuable to modern society, leading to concerns about their transfer after an owner's death, including social media accounts, tokens, and cryptocurrency. The problem is urgent, as losing access passwords can be fatal to asset retrieval.
1. Definition and Scope of Digital Assets
United Kingdom:
- The UK lacks a proper legal definition for digital assets, with various meanings attributed to the term.
- The Law Commission of the British Parliament has taken the position that a "comprehensive formal definition" of digital assets is unnecessary. However, this stance is criticized for not contributing to resolving issues in this complex area.
- Digital assets in the UK were valued at at least £2.3 billion in the cloud in 2011, and £25 billion in 2013, indicating their significant value.
- Examples include information stored in an intangible medium on computers or third-party servers, such as photos, videos, emails, playlists, financial accounts, and valuable blog/domain names.
Netherlands:
- Dutch law does not have specific rules solely for digital inheritance, meaning digital assets are inherited like any other asset.
- The accumulation of assets is increasingly digital, including text messages, emails, digital photo albums (e.g., Instagram, cloud services), and music libraries.
Belgium:
- The notion of "digital assets" lacks a precise legal definition, creating a "definitional gap".
- This absence makes it difficult to list and value all digital assets in an estate, leading to legal uncertainty and potential opportunism.
- Examples considered include domain names, cryptocurrency, subscriptions, accounts (and data within them), computer files, and information in databases.
2. Application of General Succession Law
United Kingdom:
- Key issues relate to whether content or user accounts are considered "property".
- Existing restrictive probate and succession laws, such as the Wills Act 1837 and Administrations of Estates Act 1925, do not recognize technology for disposing of digital assets.
Netherlands:
- Upon death, heirs succeed by operation of law to all transferable rights and possessions of the deceased, meaning no formal transfer of individual assets or patrimony is required (principle of saisine).
- Contracts are continued under the same conditions by heirs, unless otherwise stipulated in the contract. Property is also held by heirs under the same conditions.
Belgium:
- General Belgian succession law (articles 718 ff of the Civil Code) is applied to digital inheritance "as far as possible" due to the lack of specific rules.
- The law covers "all patrimonial rights and claims" of the deceased, which are rights that can be valued monetarily and be subject to economic transactions.
- Heirs accepting the inheritance step into the deceased's role in all contracts, including those with digital service providers (Terms & Conditions).
3. Distinction between Patrimonial and Extra-Patrimonial Rights
United Kingdom:
- Much digital content is considered personal data and information, not property, and thus generally cannot be transmitted through the usual succession mechanisms.
Netherlands:
- Personality rights, such as the right to privacy, are generally not heritable and lapse upon death.
Belgium:
- Not all rights are patrimonial; important extra-patrimonial rights include personality rights (e.g., the right to decide whether one's picture can be displayed).
- These extra-patrimonial rights are generally extinguished upon death or are "seemingly inherited" (meaning heirs exercise their own right, not the deceased's).
- The right to sentimental assets, like pictures on social media, is problematic and unregulated.
4. Treatment of Specific Digital Assets
Social Media Accounts:
- UK: User accounts and underlying software are considered the intellectual property of the service provider. Facebook offers "memorialization" and "Legacy Contact" features, which allow limited management of accounts post-death, but the Legacy Contact cannot log into the account or see private messages.
- Netherlands: Service providers' terms and conditions dictate what happens to accounts after death, which can include termination, removal of information, or conversion to a "remembrance page".
- Belgium: User accounts on social networks and multiplayer virtual games are considered objects of succession.
Digital Content and Licenses (e.g., iTunes, Spotify):
- UK: It is often unclear whether individuals (or heirs) retain rights to manage or remove content once uploaded to social media. Digital purchases, like iTunes files, are generally nontransferable licenses, not property, and thus lose value to the estate upon death.
- Netherlands: Services like Spotify or Netflix are provided via licenses, often made non-transferrable. While a non-transferability clause impedes a bequest, heirs still succeed in the contract itself. The CJEU's UsedSoft ruling is relevant, potentially making non-transferability clauses based on IP rights void for downloaded software licensed indefinitely for payment.
- Belgium: Terms & Conditions often govern "contained data" (e.g., an eBook on Audible, a picture on Facebook), and these terms can exclude transfer or make access dependent on payments. The UsedSoft decision is also relevant in Belgium regarding the exhaustion of intellectual property rights after the sale of software.
Cryptocurrency and Tokens:
- UK: Owners are concerned about the transfer of digital assets, including tokens and cryptocurrency, after death.
- Netherlands: Cryptocurrency is included in practical solutions like digital vaults.
- Belgium: Cryptocurrency might be categorized as a property right to an incorporeal good. However, technical limitations, such as a lost public key, can practically prevent an heir from accessing inherited bitcoins, even if legally inherited.
5. Privacy and Data Protection After Death
United Kingdom:
- UK law does not protect post-mortem privacy as a distinct notion.
- The Data Protection Act 1998 defines personal data as relating to a "living individual," thereby denying any post-mortem rights. The UK government has chosen to maintain this stance despite GDPR allowing member states to introduce such protection.
- This lack of protection is seen as problematic by some, who argue for extending individuals' autonomy post-mortem to their online wealth and personal data, similar to testamentary freedom for physical wealth.
Netherlands:
- It is generally assumed that the right to privacy, being a personality right, is not heritable and lapses upon death.
- Dutch data protection law restricts application only to natural living persons.
- However, if information about a deceased person also relates to a living natural person (e.g., communication partners), data protection legislation may still apply, requiring a legal basis for processing that personal data.
- Surviving relatives may have a tort claim if information about the deceased is made public without due care, potentially leading to a claim for compensation for besmirching the deceased's memory.
Belgium:
- Personality rights, including the right to privacy, cannot be transferred and are generally extinguished upon death.
- Specific legislation, such as data protection law (e.g., GDPR Article 17, the right to erasure), can override property rights, allowing personal data to be deleted from a database regardless of the physical carrier's owner.
6. Challenges and Ambiguities
Common Challenges:
- Lack of clear legal definitions for digital assets.
- Conflicts between different areas of law: succession, contract law, intellectual property, and personal data protection rules.
- Difficulty in accessing password-protected accounts: This can be a severe problem for heirs and creditors.
- Obtaining court orders: Family members may have to seek court orders to access a deceased person's digital assets, a process that can be burdensome.
- Identity theft: Unmonitored digital accounts after death are vulnerable to posthumous identity theft, as it takes time for official records to update.
Specific to UK: Ambiguity in applying copyright law to digital assets.
Specific to Belgium: Practical problems remain due to technicalities and the difficulty of listing and valuing all digital assets in an estate.
7. Proposed and Existing Solutions
Legislative Reforms:
- UK: The Law Commission is consulting on electronic wills but initially shied away from digital assets and post-mortem privacy, viewing them primarily as contract law issues. There is a call for a separate, holistic digital asset-specific law reform, including data protection and copyright reform. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the US is suggested as a model.
- Netherlands: There has been little scholarly or governmental initiative on digital inheritance.
- Belgium: The draft of the new Civil Code explicitly mentions corporeal and incorporeal goods but not digital assets, indicating a continued lack of specific legal provisions.
Practical Tools and Advice:
- United States (cited in Kharitonova): The Uniform Fiduciary Access to Digital Assets Act (FADA) grants digital asset holders the right to provide information to custodians about who can access their assets.
- UK: Testators are advised to list accounts and passwords in a letter kept with the will (not in the will itself, as it becomes public), though this practice breaches most user agreements and lists quickly become outdated. Organizations like the Digital Legacy Association provide frameworks to encourage arrangements for digital legacies.
- Netherlands: The Royal Dutch Association of Civil-law Notaries supports the development of a "digital repository" or "digital vault" for clients to store digital data and access codes, bypassing direct probate rules. Companies also offer password managers like LastPass and 1Password.
- General: "Password vaults" or Digital Asset Protection Trusts (DAP Trusts) allow clients to designate individuals for access to digital assets upon death or incapacity, aiming to prevent identity theft and fraud. However, these trusts face issues if licenses prohibit transfer or terminate on death. Some online services (DEP services) also claim to manage digital assets post-death, but their legality and reliability are questioned as they may violate ToS.
In summary, while all three jurisdictions recognize the growing importance of digital assets in inheritance, they universally struggle with clear legal definitions and consistent application of existing laws (succession, contract, IP, privacy) to these new forms of property. The UK faces significant ambiguity, particularly concerning post-mortem privacy. The Netherlands relies heavily on general succession law and contractual terms, while Belgium highlights the fundamental distinction between patrimonial and extra-patrimonial rights. Practical solutions are emerging in all countries, but comprehensive legislative frameworks are still evolving to provide clear guidance and certainty for heirs and service providers alike.