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First-Ever Post-Death Right to Privacy Law

Posted on: March 24th, 2015
digital assetsDigital assets are a challenging area of modern estate planning. Most online accounts operate under unique Terms of Use Agreements. Online portals to communication act as custodians to the content shared or stored, and these custodians or providers must comply with federal privacy laws. Combine the variables of each account with the fact that not every state has legislation addressing digital assets, and estate administration involving a decedent’s digital accounts becomes complex and increasingly time-intensive.

Virginia recently became the first state in the country to pass legislation protecting an individual’s post-mortem digital privacy. Virginia’s laws might become a model for other states. What exactly do the new laws provide?

The legislation providing the new protections is called the Privacy Expectation Afterlife and Choices (PEAC) Act. The PEAC Act sets forth clear limitations to fiduciaries, the probate court, and third parties. These include:
  • Service provider compliance per provisions in a will. A testator may include explicit provisions in their will releasing the contents of their electronic communications after their death. If the testator includes proper provisions, “service providers will comply subject to verification and indemnification processes” as stated in the PEAC Act.
  • Probate court restrictions. Probate courts can order communications records (up to 18 months prior to the decedent’s date of death) that reveal identifying information of the sender/receiver (not the contents of communications), which might help an executor locate and directly contact providers.
  • Enforces user agreements the decedent agreed to before death. If the decedent made adjustments to privacy controls on an account before their death, those settings will be recognized and followed under the terms of the new legislation. 

Digital accounts might encompass many different electronic activities; however, the Act excludes digital accounts associated with financial institutions from its procedures. To best protect the privacy and accessibility of online bank accounts, individuals should review options with their estate planning attorney.

Curious about other recent changes affecting post-death online account management? Visit our post outlining new Facebook legacy settings.
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