Currently Florida does not have specific digital asset law when it comes to estate planning, but that may change soon.
As of this writing seven states have passed legislation addressing digital assets. Our attorneys serve North Carolina, Tennessee, New York and Florida, and right now none of our states have specific digital asset laws on the matter. (New York has a bill pending.) The Uniform Law Commission has provided all states with model legislation, and so far only one state—Delaware—has adopted approved legislation.
States like Florida that do not have laws concerning digital assets must follow the terms of service agreements of each digital provider. Does a decedent have a balance in a PayPal account? Were a lifetime of sentimental family photos stored on their Flickr account?
With so many individuals opting for paperless statements and online-only finances, accounting for all assets in a decedent’s estate can quickly become difficult without access to the decedent’s email. Even if a decedent leaves behind a list of passwords for a loved one or personal representative to use, the terms of service of each account oftentimes prohibit any person other than the account owner from accessing the account. Individuals who violate the terms of service could be liable for damages and other charges. (It is still helpful to keep an updated list of accounts and passwords in a secure place. This can help the executor or estate planning attorney settle matters directly with each service provider.)
The Orlando Sentinel recently reported that a Florida estate planning and probate attorney will file legislation on digital asset management for the upcoming session. A proposal is not yet available for review, but reports show it aims to provide a designated personal representative access to the decedent’s digital accounts.
How the proposal will be received by lawmakers remains to be seen. Most, if not all, the states with active legislation on digital assets have faced scrutiny over privacy laws. This stems from compliance with terms of service as well as the Stored Communications Act, which addresses data held by third-party Internet service providers. It will likely take some time for Florida lawmakers to settle on terms for digital asset legislation. Until then, review all assets with an estate planning attorney to ensure they are addressed as adequately as possible under current law.