9130 / What uniform state laws are in place to safeguard digital assets after death? What is the Uniform Fiduciary Access to Digital Assets Act?

Until very recently, only a handful of states had enacted laws specifically to address issues surrounding digital assets. However, as people’s digital and online presence has become more widespread, the legislative framework for digital asset protection has grown. As early as 2002, a few states began individually enacting legislation in an attempt to address certain discrete issues arising out of what would become the overarching category of digital assets—starting with email account access and termination—legislation began recognizing and addressing the need to cover additional forms of digital assets that were (and are) continually growing and changing.¹

At the state level, a uniform system of dealing with digital assets has arisen relatively recently. In 2014, the National Conference of Commissioners on Uniform State Laws (Uniform Law Commission) completed drafting a proposed uniform law to address the issues surrounding digital assets. In 2015, the Conference approved and recommended for enactment its Revised Uniform Fiduciary Access to Digital Assets Act (“Uniform Act”).² Essentially, the Uniform Act provides the legal authority for a fiduciary to manage a user’s digital assets in accordance with the user’s estate plan, while ensuring that the user’s private electronic communications remain private, unless the user has consented to disclosure.

The number of states that have enacted the Uniform Act into law has grown very quickly since the Act’s promulgation in 2015. All states have either adopted the Act or have similar legislation in place.³ Oklahoma still uses the statute it enacted in 2010 before promulgation of the Uniform Act.⁴ Delaware has enacted a statute that is a substantial equivalent to the Uniform Act.⁵ A detailed listing of each state’s laws on digital assets can be found in Appendix C.

The Uniform Act provides the following legal authority for fiduciaries of a user and online service providers (“custodians” under the Act) of the user’s digital assets:

• Fiduciaries and other designated persons are authorized to access and manage the digital assets and electronic communications of deceased users; and


• Custodians of digital assets and electronic communications are authorized to permit access or to disclose digital assets to a fiduciary or designated recipient of a user.

Although the Uniform Act addresses four different types of fiduciaries,⁶ the most important for digital estate planning and administration are the executors or administrators of decedent’s estate (“personal representatives” under the Act). Fiduciaries exercise authority over digital assets under the Uniform Act only on the user’s behalf, which is distinct from other types of access to digital assets. Thus, unless family or friends of a decedent are also a user’s fiduciary, they are not covered under the Uniform Act and are instead subject to any other applicable state or federal laws (as discussed in Q .)