Beyond Tangibles - Bridging The Gap In Family Law With Digital Inheritance Legislation
Author: LawSphereX
Category: Family & Personal Law
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BEYOND TANGIBLES: BRIDGING THE GAP IN FAMILY
LAW WITH DIGITAL INHERITANCE LEGISLATION Pratyush Pandey, B.A. LL.B. (Hons.), National Law School of India University, Bengaluru
ABSTRACT
The development of property in the digital realm has led to a change in the tradition of successive rules regarding property and inheritance. This papers aims to understand where the state should intervene in regulating the inheritance of digital assets. It will attempt to fill the gaps that exist in the traditional shared family status to examine the evolution of assets, from material assets replaced by territorial assets, and will focus on the economic, emotional and private aspects surrounding digital inheritance in the form of cryptocurrencies, social media accounts and data stored in the cloud. The lack of a comprehensive legal framework creates ambiguities and conditions the power of distribution as defined by platform policies or contracts.
The inadequacy of traditional inheritance law in terms of accounts is another critical aspect: once the person dies, access to social media accounts, emails and cryptocurrencies becomes the primary claim of the heirs. It also examines the escort of insider assets to determine whether the state has certain rights over personal digital assets and whether it can claim its right to data protection under Article 21 of the Indian Constitution. The paper stresses that the place for a well-functioning legal framework that balances inheritance rights, data protection concerns and the protection of digital assets is here and now. In this regard, it proposes that digital ownership should be recognised in law, which implies designing clarity, accessibility and an egalitarian succession mechanism for the time of digital consolidation.
Keywords: google, privacy, sentimental value, cryptocurrency, succession, will, assets, legislation The Evolving Nature of Property in this Digital Era Our traditional understanding of property is undergoing a fundamental change. Previously, property was solely defined by physical assets such as land and belongings. However, the explosion of the digital world necessitates a broader definition. Intangible digital holdings, like cryptocurrency, social media accounts, and cloud-stored data, are increasingly recognised as having both economic and sentimental value. This necessitates a reevaluation of property rights and legal frameworks to encompass these new types of assets. India's internet user base has skyrocketed in recent years, especially after Jio's launch in 2016. 1 By 2020, India boasted the second-largest internet user population globally, with 451 million active users.
2 Ironically, while death is a taboo topic, the digital world offers a form of digital immortality. Our online presence - thoughts, memories, and social connections - can potentially outlast us, with some studies suggesting deceased users on platforms like Facebook could outnumber the living by the century's end. 3 A comprehensive definition of digital assets would be ‘any digitally stored content or an online account, owned by a legal person. ’4 This can be further classified into professional, personal and financial but that is outside the scope of the paper. This paper explores the challenges and opportunities presented by this evolving property landscape, particularly regarding ownership, inheritance, and regulatory frameworks.
The Need for Legal Clarity of the Digital Legacy The absence of a clear legislation is even more complicated by the fact that many companies managing online assets and social media platforms are headquartered in foreign countries, subject to those jurisdictions' laws. 5 The terms and conditions for handling deceased user accounts vary considerably across providers. For instance, Facebook allows either
1 ‘6
years of Jio: Data consumption increased by 100x in India’ (Biz Buzz, 7 Sep
2022) ?infinitescroll=1> accessed 6 April 2024 2 Meghna Mandavia, ’India Has Second Highest Number of Internet Users after China: Report - The Economic Times’ (Economic Times, 26 Sep 2019) accessed 6 April 3 ‘ Dead Could Outnumber Living on Facebook within 50 Years ’(Sky News, 29 April 2019 ) accessed 6 April 2024
4 John Romano, ‘A Working Definition of Digital Assets. ’(The Digital Beyond, 1 Sep 2011) www. thedigitalbeyond. com/2011/09/a-working-definition-of-digital-assets/> accessed 6 April 2024 5 Stephanie Pratt, ‘Technology and succession planning – What will happen to your digital estate? ’ (Thorntons Law, 17 Jan 2019) accessed 6 April 2024 memorialisation or closure of accounts upon user death. 6 Google, however, requires the executor or a family member to complete online forms. Following this, Google holds the discretion to close the account and may only release personal data from the email address if deemed appropriate. 7 This inconsistency across platforms creates confusion and uncertainty for users and their families regarding the fate of their digital assets after death.
The glaring absence of clear legal guidelines for digital assets throws a spotlight on the complexities surrounding the Aadhaar program. As the world's largest biometric ID system, Aadhaar boasts an enormous collection of personal data for Indian citizens. Unlike some government databases that function more like living documents, constantly updating information through processes like death certificates (e. g. , electoral rolls), Aadhaar currently lacks a mechanism for removing deceased individuals. 8 Consequently, those who have passed away remain figuratively "present" within the system, even though their need for government benefits or residency proof has vanished. This raises critical questions about the long-term implications for data security and privacy, particularly when personal information is retained beyond the lifespan of the individual it pertains to.
The succession laws govern how an individual's assets are distributed after their death. They establish a clear sequence for inheritance, outlining who inherits, the order of inheritance, and the potential for shared inheritance among beneficiaries. Essentially, these laws dictate the path an estate takes after the owner passes away. If the person has left behind a will then it becomes easier for the inheritor to have access to the property. In India a will is defined in accordance of Section 2(h) of the Indian Succession Act, 1925, 2(h): “will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
”9 Essentials of a will are underscored in Section 63 of the Indian Succession Act, 1925: 63: “Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his
6 ibid.
7 ibid.
8 Shweta Ganjoo, ‘You can set Facebook account to delete in case you die, but Aadhaar is forever’ (India Today, 15 Jan 2019) accessed 7 April 2024
9 Indian Succession Act 1925, s 2(h)
will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 10 However, the problem arises when no such will as such has been left by the deceased leaving the kith and kins at the mercy of the platform policies which are often embroiled in legalese agreed upon by click-wrap contracts. A significant hurdle to smooth digital asset inheritance exists even with a valid will.
This stems from the distinction between account ownership and content ownership. Technically, the platform, not the user, owns the digital account. 11 Imagine an email account – the emails themselves might arguably belong to the deceased, yet the executor may be denied access to manage or even view the account if the service provider, like Yahoo in the landmark 2005 Ellsworth case12 in the Probate Court, restricts access. This case, where the court only granted access to the email content, exemplifies the limitations of current laws. The content vs. account ownership dichotomy creates a major roadblock for executors and underscores the need for clear legal frameworks to address digital inheritance issues effectively.
The lack of regulation in the digital asset space creates a major loophole in traditional inheritance law, especially considering the increasingly globalised nature of the digital world. The severity of this gap becomes evident when considering reports suggesting roughly 2. 5
10 Indian Succession Act 1925, s 63
11 Stephanie Olsen, ‘Yahoo Releases E-Mail of Deceased Marine ’(ZDNET, 21 April 2005)
accessed 7 April 2024
12 In re Estate of Ellsworth No. 2005-296, 651-DE (Mich. Prob. Ct. May 11, 2005)
million deceased user profiles in the US alone are susceptible to identity theft. 13 Interestingly, in many instances, the perpetrators are close relatives or friends of the deceased. This highlights the urgent need for legal frameworks to address the security and inheritance challenges arising from unregulated digital assets. Escheat and the Unforeseen Complexities of Digital Property from Land to Login The intertwining of a post-modernist concept of digital assets with that of a Vedic concept of escheat becomes particularly interesting in this concept. The ancient lawgiver Manu has written in Manusawhita: “Aharajyam Brahmanadravyam Rajna Nityamiti Sthiti, Itareshantu Varnanam Sarbabhave Harenripa.
”14 Thus, under the concept of escheat, the king held the right to inherit property from individuals who died without leaving any heirs barring the Brahminical property, even in the absence of all other heirs. Following India's independence, the principle of escheat was codified in Section
29 of the 1956 Hindu Succession Act.
29: “Failure of heirs — If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject. ”15 In India, for escheat to take place, the state must satisfy the twin conditions of the proof of absence of heirs and the giving of a public notice for the claimants to come forward. The rapid proliferation of cryptocurrency exemplifies the ongoing challenge faced by legal frameworks in adapting to technological advancements. Unlike established financial instruments, cryptocurrency's decentralised nature and rapid adoption have outpaced the ability of state to effectively regulate and study it.
This lack of clear regulatory frameworks presents challenges in various aspects, including the application of escheat laws to digital assets. The United States offers a prime example of this regulatory lag. In an attempt to modernise unclaimed property laws in the face of evolving technology and property types, the Uniform 13 Martha C White, ‘Grave Robbing: 2. 5 Million Dead People Get Their Identities Stolen Every Year’ (TIME, 24 April 2012) accessed 7 April 2024
14 Manusawhita Chapter IX, Verse 189
15 Hindu Succession Act 1956, s 29
Law Commission enacted the Revised Uniform Unclaimed Property Act (RUUPA) in 2016. 16 While RUUPA acknowledges the existence of cryptocurrency, it fails to establish a comprehensive framework for its escheat. Notably absent are clear dormancy standards and specific protocols for holders to remit the property to the state creating uncertainty for the enforcement agencies and the citizens affected. 17 However, things tend to get complicated in light of how the non-financial digital assets shall be transferred. To grant the law of escheat on “property” in the digital space like that of iCloud Photos, gmail conversations and the likes would amount to a grave violation of the Right to Privacy under Article 21 of the Indian Constitution.
18 Moreover, the existence of an overwhelming market share of private players in such services like Apple, Google also raise the question of whether a writ petition by virtue of the constitutional remedies shall be applicable on them lest they should be storing the properties in their cloud servers. The Urgent Need for Comprehensive Digital Inheritance Legislation The exponential growth of the digital realm has redefined the concept of property. Intangible assets, encompassing cryptocurrency, social media accounts, and cloud-stored data, possess significant economic and sentimental value. However, the legal framework regarding their inheritance remains fragmented and underdeveloped. This lacuna creates uncertainty for individuals and potential conflict during estate settlements.
Firstly, the absence of clear legal guidelines surrounding digital inheritance creates confusion and potential legal battles. Intestate succession becomes particularly problematic. Determining rightful ownership and access to deceased individuals' digital assets, especially those with financial implications like cryptocurrency, can be a contentious process. Legislation can provide a framework for addressing these issues, outlining clear protocols for identifying beneficiaries and facilitating the secure transfer of digital assets. Secondly, digital assets often hold immense sentimental and emotional value. Family photographs, personal messages, and online content can represent cherished memories and connections to loved ones. Current legal systems struggle to recognise and protect this intangible yet deeply personal facet of digital assets.
Comprehensive legislation can 16 Michael Giovannini, ‘Looking at Unclaimed Property Issues in Cryptocurrency’ (Bloomberg Tax, 12 April 2022) accessed 8 April 2022 acknowledge the sentimental worth of such data, potentially allowing for designation of specific digital assets to inheritors alongside clear instructions on their handling be it preservation, deletion, or transfer. Lastly, the social implications of digital inheritance cannot be ignored. Social media accounts, for instance, can be repositories of emotional connections, fostering a sense of community and belonging for the deceased. Legislation can recognise this social dimension by providing options for account management or memorialisation upon a user's passing.
This could involve allowing designated individuals to manage the account for a defined period or enabling platforms to create memorial profiles that preserve connections while respecting privacy concerns. While batting for increased vigilance and exercise of caution on the part of the users of the digital services with regards to taking steps like layering security by controlling access and permissions, having a repository of digital information stored on the web, availing services of digital asset management technology is recommended. 19 However, what is imperative is for the state to legislate in the burgeoning landscape of digital assets which necessitates a proactive response under the rule of law. Formulating comprehensive legislation on digital inheritance will ensure clarity, facilitate fair and secure transfer of assets, and recognise the multifaceted value associated with them.
Therefore, it is imperative for the state to enact comprehensive legislation governing the inheritance of digital assets, striking a balance between privacy, sentimental value, emotional attachment, and social relations. 19 Dr Prashant Mali and Aswathy Prakash G, ‘Death in the Era of Perpetual Digital Afterlife: Digital Assets, Death in the Era of Perpetual Digital Afterlife: Digital Assets, Posthumous Legacy, Ownership and its Legal Implications Posthumous Legacy, Ownership and its Legal Implications’ (2019) 15 National Law School Journal 124