Digital Planning: The Future of Elder Law

Abstract

More than half of individuals over the age of 65 use the Internet or e-mail — and they are a fast-growing population on the Internet. Like most people, however, they have probably not considered how to dispose of their digital life if they become incapacitated or when they die, even though they are in the most likely age group to have drafted a will. Indeed, even if they do engage in planning, they cannot be confident that their wishes will be carried out: only a few states have laws covering probate and digital assets, there is no generally accepted method for using wills or trusts to dispose of digital assets, and the policies of Internet providers often preclude the exercise of individual autonomy. As Internet usage becomes even more pervasive and as online assets and accounts have the potential to become even more valuable (emotionally and financially), issues involving control of digital property are rapidly becoming even more important.

This article first explains digital assets as a new species of property and discusses the importance of planning for these assets. The article next analyzes the legal context for digital asset disposition, including the few existing state laws, and then turns its attention to the future, including suggestions for planning and commentary on where the law might be headed. Notwithstanding the legal uncertainties surrounding digital asset disposition, individuals should make plans for the management, ownership, or destruction of these assets based on the foundational principles of deference to the individual’s intent. Acknowledging the difficulty of predicting the future, the authors feel quite confident that, as Elder Law moves forward, planning for a client’s digital assets will assume an increasingly important role.

Keywords: will, trusts, digital assets, internet, passwords, estate planning, elder law

JEL Classification: K11