Right to Privacy Vs. Right to Access Digital Records

These days, much of our clients’ lives are lived online in a virtual world. It’s how they communicate with others, conduct their banking and business and do their shopping. What happens to all of this online information when they die?

Last year, New York enacted Article 13-A of the Estates, Powers and Trusts Law (EPTL), modeled after the Revised Uniform Fiduciary Access to Digital Assets Act, attempting to provide a decedent’s personal representative with access to certain electronic communications after death while balancing the personal representative’s need for information with the decedent’s right to privacy in his electronic communications.

In Matter of Serrano,¹ the New York County Surrogate’s Court considered the application of EPTL Article 13-A in a case involving a request by a decedent’s spouse to access the decedent’s Google email, contacts and calendar information.

Under EPTL Article 13-A, the custodian of electronic records (in this case, Google) is required to disclose to the personal representative of the decedent’s estate “a catalogue of electronic communications sent or received by the deceased user” – not the content of the communications, but the time, date and email address of the other party to the communication, including the decedent’s contact list, unless: (1) the decedent prohibited such disclosure using an online tool or in his will, trust or other record, or (2) the court directs otherwise. The court in Serrano found that the decedent’s calendar wasn’t a “communication” protected by the statute and, thus, must be disclosed to the personal representative.

The content of the decedent’s email communications may be disclosed if the decedent consented to such disclosure using an online tool or in a will, trust or other record or if a court finds that disclosure is reasonably necessary for the administration of the estate, and disclosure wouldn’t violate the federal Electronic Communications Privacy Act or other applicable law.

To ensure that your clients’ wishes are carried out with respect to their electronic communications, it’s important that you include directions in their will or revocable trust as well as in their power of attorney. Documents that haven’t been recently updated may lack provisions regarding electronic communications.

Endnotes:

1. Matter of Serrano, 2017-174 NYLJ 1202790870327 (Surr. Ct. NY County, June 14, 2017).