Digital asset
Key takeaway
In Minnesota, for example, a digital asset under its digital access statute is an electronic record in which an individual has a right or interest, excluding an underlying asset or liability unless itself an electronic record. Other states differ.
Start your planning conversation by separating three questions: What electronic material exists? Where is it kept? What instructions have you recorded about it?
Electronic material and the property behind it
Delaware’s digital access statute includes emails, documents, images, videos, software, licenses, databases, and social media content created, generated, sent, communicated, shared, received, or stored electronically on a digital device.
Its definition excludes an underlying asset or liability governed under other provisions of Title 12.
For your own inventory, list the electronic record separately from the property it describes. Bring questions about that distinction to your estate planning attorney.
Account directions deserve a separate review
In Minnesota, for example, if an online tool lets users modify or delete directions at all times, its disclosure direction overrides their contrary direction in a will, trust, power of attorney, or other record.
If the user gave no direction through that tool, or the custodian provided none, a will, trust, power of attorney, or other record may allow or prohibit disclosure to a fiduciary, including communication contents.
Either statutory direction overrides a contrary service agreement provision when that provision does not require affirmative, distinct assent separate from assent to the service terms. Other states differ.
When preparing for an attorney meeting, gather your account directions alongside your estate documents so you can discuss them together.
Two related terms
Custodian. In Minnesota, for example, this means a person that carries, maintains, processes, receives, or stores a user’s digital asset under the digital access statute. Other states differ.
Online tool. In Minnesota, for example, this is a custodian’s electronic service letting users direct disclosure or nondisclosure of digital assets to another person through an agreement distinct from the service terms. Other states differ.
Common questions
Are phones and computers digital assets?
Delaware classifies phones and computers as digital devices, separate from the electronic material covered by its digital asset definition.
Under that statute, a digital device is electronic equipment capable of creating, transmitting, storing, displaying, or processing information. Its examples also include servers and tablets, and its list accommodates developing technology.
Can usernames and passwords count as digital assets?
Yes, Delaware expressly includes usernames and passwords when created, generated, sent, communicated, shared, received, or stored electronically on a digital device, excluding underlying assets or liabilities governed elsewhere in Title 12.
Sources
- Minnesota Statutes, section 521A.02. Definitions of digital asset, custodian, and online tool.
- Minnesota Statutes, section 521A.04. User directions, the online tool priority condition, and service agreement provisions.
- Delaware Code, Title 12, chapter 50, section 5002. Definitions of digital asset and digital device, including the underlying property exclusion.