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.