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Julie Garber

Should Your Facebook Account Become a Probate Asset After You Die?

By January 23, 2013

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Lawmakers in Virginia think so. After the 15-year-old son of Diane and Ricky Rash, Eric, committed suicide in January 2011, the Virginia couple turned to their son's Facebook account for answers. But due to its strict privacy rules, Facebook denied the grieving parents access to their son's account. When the couple approached state legislators for help, they were surprised to learn that "digital assets" such as Facebook and Linkedin were nowhere to be found in the Virginia State Code. Since then four Virginia lawmakers have introduced legislation that will give the executor of an estate access to a deceased person's "digital assets," including social media accounts, emails and blogs. The bill is modeled after the one passed in Oklahoma in 2010 - the first of its kind in the U.S. - which gives an executor the right to access online accounts in order to preserve a deceased person's cyber life and then terminate the accounts at the appropriate time. New Hampshire is also currently considering similar legislation.

As I discussed back in 2010 regarding the Oklahoma law, one major problem with this type of "digital asset" law is that most online social media providers claim that the content posted on their websites belongs to the provider, not the user, so even if a state law gives an executor the right to access a deceased user's information, the provider could potentially deny the request. Perhaps a federal law will be required to trump a provider's strict privacy guidelines. Meanwhile, stay tuned for updates on the Virginia and New Hampshire bills.

December 30, 2013 at 9:01 pm
(1) David Goldman says:

A bigger problem is that your Facebook account is a license that expires upon death. Only by putting your account in a vehicle that survives death does someone have the right to access it. I doubt if even a state law would be able to grant a right that has already expired.

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