9133 / How does an online provider’s terms of service agreement impact the disposition of an individual’s digital assets?

Each online service provider has its own terms of service agreement. Depending on the terms, there may be limitations or restrictions on what a user, or a digital fiduciary, can do with respect to the user’s account after death. They can also affect how the laws, particularly the Uniform Act (see Q 9130 to Q 9131) may be applied.Even if the state’s version of the Uniform Act authorizes service providers to disclose electronic communications and their contents, and the user authorizes the digital fiduciary to access those electronic communications, if the service provider’s terms of service agreement with the user contains provisions that do not permit the user to authorize another party to access the user’s data, it is the terms of service that will ultimately prevail.

This illustrates the importance of checking the terms of service—preferably while the user is alive—to ensure that the service provider’s policies will permit the user’s wishes regarding account to be carried out rather than thwart those wishes.

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Planning Point: While the client’s wishes may conflict with some companies’ terms of service agreements, it is still valuable that the executor be made aware of those wishes. Companies frequently update their terms of service agreements, so the clients may be in line with the terms of service at some point in the future. Jason Carr, M.S., M.Ed.

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