Legal Blog

IP Alert: Facebook’s New Digital Inheritance Policy

FacebookEarlier this year, Facebook introduced a policy that allows users to specify who will inherit their account information after they die. New features such as account “memorialization” and “legacy contacts” address some of the longstanding legal uncertainty surrounding individuals’ digital legacies and assets. The problem? Most users have not chosen executors. As more and more aspects of daily life take place online, people increasingly leave behind extensive, posthumous digital footprints. Leftover media and intellectual property could comprise everything from banking information to email correspondence to videos, photo albums, and so on. How websites and online services handle passing these data on to heirs has become a subject of contention, and policies vary. Twitter, for instance, requires a copy of the death certificate along with an estate administrator or family member’s ID before it will delete a deceased user’s profile. The variance and complexity of digital inheritance policies can leave family members scrambling after the loss of a loved one. Anonymous abusers, seeking to damage a user’s reputation or estate, frequently exacerbate the issue—especially in the case of a prominent death. As recently as February, individuals were creating accounts for Victoria Soto, a teacher killed during 2012’s tragic Sandy Hook Elementary School shooting, in an apparent effort to suggest the entire incident was a hoax. With few options to fight back, Soto’s family applied to trademark her name. Facebook’s new policy, announced days after the press picked up Soto’s story, aims to curb abuse by giving account holders two options: each user can either name a “legacy contact” to oversee a memorialized version of the account upon the user’s passing, or opt to delete the account altogether. However, as I alluded to above, a recent poll suggests few users have taken advantage of these features. Forbes reports: [I]n the poll, which surveyed 2,009 U.S. adults, 70% of respondents with a will hadn’t picked a digital executor. … More than half had no idea that they needed to at all. Many (39%) also said they assumed their family and loved ones would be able to access, manage or delete their accounts on their behalf. The legal environment of digital inheritance remains murky. Only seven states—Delaware, Connecticut, Idaho, Indiana, Nevada, New Hampshire, and Rhode Island—have passed legislation addressing the rights of authorized fiduciaries to access decedents’ online accounts and data. Legislators in several other states, including Maryland, have introduced similar proposals with varying degrees of success. For a full rundown of current laws by state, click here.

If you have any questions about Facebook’s new policy or managing your digital estate, please contact us. To learn more about Offit Kurman’s Intellectual Property practice group, click here. You can also find information about our Estates and Trusts Planning group here.


Jonathan R. Wachs Jonathan Wachs provides strategic counseling and operational advice to clients in the areas of intellectual property, commercial transactions and outsourced legal departments. As head of the firm’s Intellectual Property Group, Mr. Wachs works closely with clients to develop, register, analyze, enforce, and transfer intellectual property assets in a customized, cost-efficient, and highly effective manner. Additionally, he conducts intellectual property audits through which clients learn the nature and value of their intellectual property assets and the steps needed to protect such assets from misappropriation or dilution. As a business lawyer, he has successfully negotiated and completed several multimillion dollar business transactions and has served as general counsel to several small and midsize businesses and organizations in various industries and professions. He also manages a blog about intellectual property issues, Friday Factoids. Mr. Wachs co-manages New Paradigm Counsel, a service through which Offit Kurman delivers customized, comprehensive and cost-effective outsourced legal departments. Through New Paradigm Counsel, Jon served as outsourced general counsel for a government contractor, a large printing business, a payment processing company and an identity theft restoration business.   You can also connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn. WASHINGTON | BALTIMORE | FREDERICK | PHILADELPHIA | WILMINGTON | VIRGINIA | NEW YORK