You may never have thought about what will happen to your e-mail or social media after your death, and you may never read those long "terms of service" agreements required by many online services. Two Massachusetts siblings have been forced to consider these topics recently, while engaged in a long legal battle to get access to their deceased brother's email.
A man named Robert opened a Yahoo! e-mail account for his brother John in 2002. In 2006, John was killed in a car accident. Robert then tried to log in to John's email so that he could notify friends and family about John's memorial service, but he did not have the correct password. Robert and his sister Marianne then asked Yahoo! to give them access to John's e-mail account to help them find his assets and administrate his estate. At first, Yahoo! agreed to do this if they could get a copy of John's death certificate. Later, it refused based on a federal law called the Stored Communications Act, which is designed to protect the privacy of online service users.
Robert and Marianne got a court order allowing them to get "subscriber and e-mail header information," but after further negotiation with Yahoo! they were unable to get the contents of John's e-mails. They brought a case in Massachusetts probate court against Yahoo!, asking that the court declare that the contents of John's email were part of his estate.
So are e-mail messages part of the property of an estate under Massachusetts law? The appeals court has not yet reached an answer on this issue. Instead, it addressed some preliminary issues stemming from the Yahoo! e-mail terms of service agreement. The court determined that the provision in the terms of service requiring Robert and Marianne to use the California court was not enforceable, because they never received adequate communication of it until they began litigation. The case will go back to the lower court for more analysis. However, this case only involves a Yahoo! e-mail account, and does not deal with social networking sites, photos, reviews, and the other types of online content you may create.
What can you do to ensure your wishes are followed after your death? Only five states currently have estate laws that deal with electronic data, and Massachusetts is not one of them. If you have a Google account, you can sign up for "Inactive Account Manager," which gives access to a trusted person after a specified period of time without account activity. For your electronic data as well as all other property, it is wise to have an estate plan in place. Although the law around electronic data is complex and is still developing, Glickman Turley attorneys can help you come up with a plan that fits your needs.
