See You on the Other Side: Planning Your Digital Legacy

What happens to social media accounts when an individual dies? As social media is a growing source of revenue for individuals, from influencers to public figures, and the dominant means of how people document their lives, it is critical that people understand their rights and obligations regarding their digital legacy.

For example, actor Chadwick Boseman tragically died in 2020 at the height of his celebrity. At the time, he was an Avenger, headlining the Marvel movie Black Panther, which made over $1.3 billion at the box office. His estate currently maintains his social media accounts, which post celebrations of his life and accomplishments, inspirational quotes from the actor, and information on his Foundation for the Arts charity. On his Instagram account alone, these posts reach out to his more than 11.8 million followers across the world.

Even for individuals that did not come to fame during the digital age, a digital presence has been a way for the estate to capitalize on their name, image and likeness. Michael Jackson currently has 69 million Facebook followers. Musician Bob Marley has 6.8 million Instagram followers. Marilyn Monroe has 255,000 followers on Twitter. Each social media account promotes the life and work of the celebrity as well as endorsing projects and products that will generate revenue for their estate while maintaining a present-day platform for interaction with fans. The estates of Whitney Houston, Tupac Shakur and Bob Ross each promoted branded face masks during the pandemic. Even death cannot stop a lucrative endorsement deal.

It is crucial to understand an individual’s rights of publicity and the rights to commercial use of name, image, and likeness — both during life and post-mortem. States vary on who qualifies for the post-mortem right of publicity and the duration those rights exist. New York only recognizes a post-mortem right of publicity for those that have a commercial value at the time of their death or resulting from their death.[1] California limits publicity rights to the last 70 years after the death of the celebrity.[2] This has tremendous implications for the estates of deceased celebrities who wish to monetize the benefits or protect the individual’s legacy from exploitation by unrelated companies. For example, in 2021, in a 271-page ruling after 12 years of litigation, the U.S. Tax Court reduced the taxable estate of Michael Jackson from the IRS’s estimation of $961,745,574 to $111,467,473, in part due to potential revenue streams traceable to Jackson’s image and likeness.[3] There, the Court held:

“[J]ust as the grave will swallow Jackson’s fame, time will erode the Estate’s income…[and] [t]he value of what [the Estate] has left, no matter how well managed, will now dwindle as Jackson’s copyrights expire and his image and likeness shuffle first into irrelevance and then into the public domain.”[4]

How You Can Hand Over Your Social Keys

While everyone on social media is not a celebrity, it is important that loved ones have a road map to digital assets before death. A study published in 2019 predicted that based on the 2018 user levels, the dead could outnumber the living on Facebook within the next 50 years.[5] Social media users should consider planning for what they want to happen to each account. Each platform has its own terms and conditions for what happens to your social media account after you pass away. Here, we explore a few of the more popular platforms and some ways users can plan ahead:

• Facebook: A user can assign a “legacy contact”, who may have limited management of the deceased’s account — such as changing profile photos, removing the page, and accepting friend requests. However, the legacy may not post on behalf of the deceased or send messages. If there is no assigned legacy contact, the next of kin may contact Facebook to convert the page to a memorial page or leave the page as-is. Without a predetermined legacy contact, this may create an additional burden on the surviving family members.
• Apple: Apple’s legacy contact gives one or more individuals access to the data stored on your Apple account after your passing. The contact will need a death certificate and access key generated when they are added as a legacy contact.
• Instagram: Instagram does not have a legacy contact function. However, an immediate family member may request to convert the page to an Instagram Memorial Page.
• Twitter: Twitter does not have a memorial or legacy contact function. An immediate family member must contact Twitter and provide a death certificate if they elect to delete the family member’s page.
• TikTok: TikTok does not have a memorial legacy contact function. Instead, a family member must contact TikTok and request removal, which is left to the discretion of the company.
• LinkedIn: LinkedIn does not have a legacy contact. An individual authorized to act on behalf of the estate may request to memorialize or permanently close the account. Third parties not authorized on behalf of the estate can notify LinkedIn of the deceased individual and LinkedIn will “hide” the account, though it does not delete the account until an authorized individual contacts them.
• Pinterest: Pinterest does not have a legacy contact. Instead, Pinterest requires an email with a death certificate and proof of relationship to the deceased to delete the account. Pinterest does not give control over to the family member or executor but will delete the account in its entirety.
• Google/YouTube: Google/YouTube has an Inactive Account Manager option, which if turned on, will notify a “trusted contact” that an account has been inactive for a specified period of time and share data that you have chosen to share with them. Additionally, Google/YouTube permits a loved one to provide a death certificate and proof of relationship to the deceased to delete the account.
• Snapchat: Snapchat does not offer any option for a loved one to close an account when someone passes. The only way to remove the account is to have the login information and delete the account.

As technology moves incredibly fast, with new social media platforms arising frequently (Mastodon, BeReal, Twitch, Discord, the Metaverse), it is important to leave a guide map to your social media accounts and your digital footprint.

According to the National Conference of State Legislatures, 49 states, the District of Columbia, and the U.S. Virgin Islands have now enacted laws addressing access to social media accounts (as well as other user data) upon incapacity or death.[6]  The lone holdout, Massachusetts, has legislation currently pending before its chambers.[7]

States typically follow the Revised Uniform Fiduciary Access to Digital Access Act of 2015 (the “Act”). The Act gives users the power to plan for the management, conservation, and access of their digital assets (i.e., digital property and electronic communications) just as they would with their tangible property (i.e. real estate and bank accounts). This would include email accounts, cloud documents, photos, contact lists, calendars, text messages, cryptocurrencies, NFTs, and online purchasing accounts and subscriptions. Under the Act, an individual has the right to decide whether their digital assets will be preserved, distributed to heirs, or destroyed. The Act addresses four common types of fiduciaries (1) executors of an estate; (2) court-appointed guardians or conservators; (3) agents acting under a power of attorney; and (4) trustees.[8]  These fiduciaries for digital assets are subject to the same duties that apply to tangible assets.

Digital Legacy in Estate Planning

One way to plan for the management of your digital assets is to incorporate a digital legacy in your estate plan. You can designate a legacy contact or person who is authorized to access and manage your accounts and provide the login information, much like your executor would do with your checking accounts. This eliminates any confusion over who may access your accounts after your death and the extent to which you want to grant access to them. A skilled estate planning attorney can incorporate your wishes into your will, trust, digital asset plan, or a durable power of attorney, which would grant authority over your designated accounts in the event of incapacity. Whereas a will becomes a public document once filed with the court, an experienced estate planning attorney can draft a trust, digital asset plan, or durable power of attorney that can protect your passwords and digital identities from the public domain. You worked a lifetime to keep your information secure, and a little foresight will keep it that way after you’re gone.

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This DarrowEverett Insight should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This Insight is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this Insight, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

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[1] N.Y. Civ. Rights Law § 50-f.

[2] Cal. Civ. Code § 3341.1.

[3] Estate of Jackson v. Commissioner, T.C., No 17152-13, T.C. Memo 2021-48 (May 3, 2021).

[4] Id. at pg. 253.

[5] Öhman, C. J., & Watson, D. (2019). Are the dead taking over Facebook? A Big Data approach to the future of death online. Big Data & Society, 6(1). https://doi.org/10.1177/2053951719842540

[6] https://www.ncsl.org/research/telecommunications-and-information-technology/access-to-digital-assets-of-decedents.aspx

[7] See HB 1749, HB 1864, SB 973, SB 1033.

[8] Note that like most uniform laws, state legislatures are free to elect which sections of the Act they wish to enact or omit. For example, while the Act includes a conservator as a fiduciary, New Jersey’s version of RUFADAA excludes a conservator from the definition of a fiduciary.  It is critical in planning your estate to have knowledgeable attorneys that understand the version of the Act that has been adopted by your state.