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Can Your Email Provider Refuse to Give Your Estate Access to Your Account?

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In 2016, the Florida legislature adopted the “Fiduciary Access to Digital Assets Act.” This law, for the first time, created a formal legal process in Florida whereby a person could authorize an agent (through his or her estate plan) to access their various online accounts, including their email and social media. Such legislation was necessary because many large online service providers have been reluctant to disclose the contents of a user’s account, even to the personal representative of the estate of a deceased customer. Florida’s law is designed to eliminate this problem.

Mass. Court Strikes Down Yahoo’s Efforts to Invoke Federal Anti-Disclosure Law

But the law regarding the disposition of “digital assets” is still in its early stages of development. Even with Florida’s fiduciary access law in place at the state level, some providers may still attempt to invoke federal law in order to avoid disclosure. Recently the highest court in the State of Massachusetts rejected such an effort.

This case involves a now-deceased man who used Yahoo as his primary email account for about four years. He died in 2006 without leaving a will. The Massachusetts probate court named his brother and sister as co-administrators of his estate.

The co-administrators asked Yahoo to allow them access to their brother’s email account, which they claimed was property of the estate. Yahoo objected to this request on two grounds: First, disclosure of email to someone other than the actual user would violate the federal Stored Communications Act (SCA); and second, the estate had no “common-law property right” in the emails under Yahoo’s terms of service.

The SCA was adopted by Congress in 1986–long before email and the Internet became part of most Americans’ daily lives. In broad terms, the SCA prohibits a service provider from voluntarily disclosing the “contents” of any electronically stored communication unless certain exceptions apply. Here, the estate cited two of those exceptions in support of its request for access: one permitting access by an “agent” of an intended recipient, and the other for persons who have the “lawful consent of the originator or addressee.”

The Massachusetts Supreme Judicial Court held the second exception applied but not the first. The Court said that confronted with the “novel question” of whether a personal representative can give “lawful consent” to disclosure under the SCA, its answer was “yes.” Prohibiting the lawfully appointed personal representative or administrator of an estate “from consenting on a decedent’s behalf” would effectively result in the “preemption of State probate and common law.” And the Court could find no proof that Congress intended to engage in such preemption.

Get Legal Advice Regarding Your Florida Digital Assets

The Massachusetts ruling was not, however, a complete victory for the estate. The Supreme Judicial Court said Yahoo may still be allowed to deny access to the estate under its terms of service. That issue was returned to a lower court for further proceedings.

And of course, a decision by a Massachusetts court is not binding law in Florida or any other state. It is possible, if not probable, that this issue will come up again. This is why it is important to include digital assets as part of your own estate planning, so that there is no doubt whom you wish to access your stored data upon your death.

If you need assistance from a qualified Fort Myers estate planning and probate attorney with understanding Florida’s digital assets law, or any other aspect of the state’s probate system, contact the Kuhn Law Firm, P.A., today at 239-333-4529 to schedule a free initial consultation.

Sources:

Ajemian v. Yahoo!, Inc., Supreme Judicial Court of Massachusetts (Oct. 16, 2017).

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