David Shulman: Gizmodo Gets Everything About the Fiduciary Access to Digital Assets Act Wrong

David Shulman: Gizmodo Gets Everything About the Fiduciary Access to Digital Assets Act Wrong

 

By David Shulman

As I’ve written recently, the Uniform Law Commission approved the Uniform Fidicuary Access to Digital Assets Act. The act can be found on the Committee’s website, along with supplemental material, such as prior drafts, comments, and issues memorandum. A direct link to the final approved Uniform Act, with a prefatory note and comments can be found here.

The Uniform Act

I was appointed by the American Bar Association to be a Section Advsior to the Committee. I attended meetings and participated in the drafting of the Act. My comments here, are my own though.

A Uniform Act is a “model” or “proposed” law that other states can take and, with minimum tweaking, can adopt as their own. The first state to enact the act was Delaware, when Delaware became the first state to enact the Fiduciary Access to Digital Assets Act.

Ars Technica has a very good article on it.

Gizmodo then wrote its own article entitled, “All States Should Adopt Delaware’s Sweeping New Digital Inheritance Law.” The article states that “Delaware’s law—and the ULC legislation that guided it—simply gives the account holder power to decide what happens to his or her digital assets.”

No. In fact, that’s what the law does not do. The Act is not about inheritance, and it certainly does not give any additional power to transfer assets that didn’t exist before.

The Act is about ACCESS

As the Prefatory Note to the Act states, “The act vests fiduciaries with the authority to access, control, or copy digital assets and accounts.” What does that mean?

Before the Act, it was unclear whether or not your personal representative, or someone you appointed as your power of attorney, or a trustee, or a guardian could even access your digital assets. Because of federal law, their logging into your email accounts could be a felony.

The purpose of the Uniform Act, and the Delaware law, is to set forth the times and circumstances that fiduciaries could obtain access -to digital assets and online accounts.

It does not, and it can not, create property rights that were not there to begin with.

Visit South Florida Estate Planning Law for more commentary from Florida estate planning attorney David Shulman. David Shulman is an attorney located in South Florida who focuses his practice on Wills, Trusts and Estates, and Tax Planning. He attended George Washington University Law School and Brandeis University, both of which he graduated with honors. In addition David received his LLM in Estate Planning from the University of Miami Law School. Prior to starting his own practice, David worked for the Internal Revenue Service and a large South Florida law firm.

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