Estate Planning and Digital Assets – 2015 Wisconsin Act 300

So many of us live, work, and play in the digital world. E-mail, cloud-based file storage, social media, online shopping, internet-based music, television and movie subscriptions, the list can go on and on and on.  Have you ever stopped to think about what happens to your accounts and all the associated information once you are dead? Or disabled? Will anyone ever know that you had an online subscription to mystery novels and read one per week? As of April 1, 2016, you can help decide who gets to access your accounts, who may never access your accounts, and what information they may have access to. A new Wisconsin law, 2015 Act 300, was passed by the Legislature and signed by Governor Walker on March 30, 2016.  The Act creates a new Wisconsin Statute, Chapter 711 – Digital Property, and addresses who, when, and how your digital property can be accessed.

Here is the basic scheme: If a “custodian” (the person or company that provides the electronic communication) provides and online tool for you to designate who gets (or doesn’t get) information, you may use it and it must be honored. If you don’t  use an online tool or the provider doesn’t provide one, you can give instructions in a will, trust, power of attorney or any other governing instrument. And as for those “accept the terms of service/license” boxes we all click mindlessly… if your specific instructions contradict the terms of a license or user agreement, your external instructions may override the general user’s terms.

I am SO EXCITED about this development for several reasons.  It provides people certainty and tools when attempting to make plans for who gets rights to information.  You can now designate a person access to your e-mail, social media accounts, smart phone records, etc.  This means you can “will” your Facebook account to someone, you can use a Power of Attorney to give a specific person access to your e-mail in the event you are seriously injured.  Personal Representatives of Estates, Agents under Powers of Attorneys, Guardians and Trustees have the ability to petition courts for orders and then make requests to providers for information. The law also provides that “digital property” may be classified as “marital property, making your accounts “assets” in the event of a divorce, or subject to marital property claims upon death.  The law only applies if the “user” is a Wisconsin resident or was at the time of their death.

Keep watching for more updates as I delve deeper into the details of the new law. I am certain that as time passes there are going to be some very interesting cases, definitions and interpretations coming our way from the courts. For more information about the law, the State Bar of Wisconsin has an article about the history of digital estate planning laws: Inside Track: Estate Planning in the Digital Age.