March 18, 2015

Legislative Session Closes Without Action on Digital Estate Planning: Thoughts on Facebook’s Plan to Fill a Gap Between Privacy and Fiduciary Law

Related Attorneys

by Doug Brent and Robby Packard

As we wrote about in January [1] and last November [2], both the law and technology companies are in the midst of trying to figure out how state laws governing inheritance and access to assets should be changed, if at all, to govern this new electronic world, particularly when people die and wish to allow their executors, trustees, and other fiduciaries to act with regard to “digital” assets. State and federal privacy statutes, as well as restrictions in user agreements, can undermine even good faith efforts to carry out the wishes of the deceased concerning their digital lives.

The tension is easy to illustrate when you consider Facebook or similar social media accounts. There have been numerous, poignant stories about grieving family members stymied in their efforts to honor the lives or preserve digital memories of lost love ones. Melissa Rivers, grieving daughter of the late comedienne Joan Rivers, apparently hacked the password for her mother’s Twitter account to share a touching photo featuring both of them. Given the context, objection seemed unlikely. But take the same situation and consider if the password was beyond guessing or recovery. What to do?

legacy by three

On February 12, Facebook announced it will soon allow its U.S. users to select a “legacy contact” with a limited right to manage the user’s page after death. Users will also gain the option to ensure their Facebook account is removed after death. Until now, changes to an account generally depended on whether a family member of the deceased requested that Facebook memorialize the account.

Does Facebook’s move eliminate the need for states to update their laws related to fiduciaries? Probably not. First, participating in Facebook’s legacy option requires a user to identify a prime trust relationship between the user and a 3rd party. That information could be seen as highly valuable to marketers, and therefore may raise some privacy concerns. Moreover, the legacy contact needs to be a Facebook user. Also, whether a deceased user’s Facebook account ends up being managed under the legacy option depends on that legacy contact’s voluntary efforts – nobody is assigned to manage or terminate the account. And Facebook’s plan does not provide for a backup administrator. Finally, the important privacy and planning issues Facebook is addressing are common to numerous other social media platforms, as well as to other types of digital property and online accounts.

The goal of estate planning attorneys has always been to provide their clients with control – control over their assets during their lives and a say in how those assets are distributed at their deaths, and as property itself (and financial account access) transitions into digital form, the law which attorneys use to provide this control will need to catch up.

Facebook’s announcement will bring much-needed attention to a reality often overlooked: we need to plan for the inevitable. This private sector move underscores the need for our laws to catch up to the times. Since Kentucky law will not be amended this year, there are even better reasons to consider the steps Kentuckians can take now to ensure their wishes related to digital property can be respected in the future. For more information, contact one of the attorneys in Stoll Keenon Ogden’s Trusts, Estates & Family Law practice.

[1]  2015 Legislation Watch–Kentucky and Seven Other States Introduce Uniform Fiduciary Access to Digital Assets Act

[2]  What Happens to Your Digital Life When You Die?