What you should know about digital privacy rights after death

Virginia law protects digital records of a deceased person from being accessed unless certain qualifications have been met.

When George Washington died, his wife burned nearly all of the letters between herself and General Washington depriving the public of significant insights into General Washington's life. While we do not write as many letters today, email, text messages, SnapChat, Facebook messaging, and other services can provide necessary information for a personal representative administering an estate, but can also create many problems - both financial and emotional - for loves ones if revealed.

Online privacy continues to be a prevalent media topic in Virginia and across the United States, and the discussions range from the settings on social media accounts to unlocking smartphones. What happens to all of the private information after a person dies, though? State legislators passed the Virginia Privacy Expectation Afterlife and Choices Act to address these issues.

Why is access an issue?

According to CBS News, survivors of the deceased often need to take care of bills and other business that has been conducted online. However, the privacy agreements required by online service providers typically do not allow their policies to be violated when an account holder dies. Posthumous electronic privacy is also protected by federal law. The conflict between the need for access and the rights of privacy has created a conundrum lawmakers did not easily overcome.

Who may access digital records?

In 2015, the Virginia General Assembly passed legislation allowing access to online records of a deceased person, but limited to the personal representative of the estate. This is further limited to only those digital documents dated up to 18 months before the date of the person's death, unless the court determines that the estate cannot be administered without the records. However, this does not include information that has been stored, and access is also not granted for the electronic communications such as email or text messages of the deceased.

Unless a minor leaves a will or other legal document stipulating access to his or her digital records, the personal representative may have access to the accounts, including the electronic communications.

When can access be denied?

Joint accounts are not available to the personal representative unless all of the users provide permission via electronic communication or written format. The representative may not access accounts if there is a will that prohibits it, or if there is not enough identification to prove the user's identity to the service provider.

A personal representative's request for the private information cannot be honored if it is not evident that the records are necessary to administer the estate. The service provider may also deny the request if the deceased user requested that the provider prevent disclosure after death or chose an account setting to keep the information private.

Even though Virginia has a law specific to the digital privacy rights of the deceased, the interpretation of the law may be difficult to navigate for a person not familiar with the legal system. An attorney may be able to provide representation to ensure that access is granted to the appropriate person.

Why is this important?

Digital privacy is a new consideration in estate planning. Some individuals may not want their spouse or loved ones to have access to their private communications with third parties. It is important that your estate documents give clear instructions to your personal representative and third parties about exactly who you want to have access to your electronic communications and how much access you want them to have.