WHAT HAPPENS TO YOUR E‑MAIL AFTER YOU DIE?
When a prominent poet died without leaving the password for his e‑mail account, where he kept virtually every significant piece of personal information, his daughter had no means of gaining access to that information so that she could notify others of her father’s death. Citing privacy concerns, the ISP for the account refused to divulge the information to the daughter.
These real‑life stories are the leading edge of what may become a wave of litigation concerning ownership of e‑mail information upon the death of the account holder. The competing interests are the privacy of the account holder, coupled with the ISP’s interest in preserving that privacy, and the survivors’ rights to the property of the deceased.
Most of us think of e‑mail as the modern equivalent of a box of letters belonging to us, when, technically, e‑mail is an intangible form of property owned by the ISP. Nonetheless, if it is possible to spot an early trend on the issue, that tendency is to treat e‑mail information as the account holder’s property upon his or her death. In most states, the issue is still unresolved and without clear case precedents. At least one state has passed a law directing ISPs to turn over the e‑mail of a decedent to the personal representative for the decedent’s estate.
Steps to Take Now
It will be some time before legislatures and courts catch up with the reality that millions of people use their e‑mail accounts as repositories for all sorts of information having sentimental, historical, or economic value. In the meantime, there is some practical advice for facilitating access to e‑mail information “left behind”:
• As strange as it may sound, consider dealing directly with the issue in your estate planning by including e‑mails specifically in your will, especially if they have monetary value. In connection with this, you should archive the information to your hard drive and be sure that your survivors have any necessary passwords. Conversely, if you want to take your e‑mails with you, in effect, stipulate in your will that no one is to have access to your account.
• Get good legal advice, including information as to whether there are any new laws in your state on the subject. They could trump, or at least affect, whatever arrangements you have made or may be considering for disposing of your e‑mails after your death.