Probate Law Meets the Digital Age

32 Pages Posted: 26 Nov 2014

See all articles by Naomi Cahn

Naomi Cahn

George Washington University - Law School

Abstract

This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.

While existing trusts and estates laws could legitimately be interpreted to encompass the new technologies, and while the laws applicable to these new technologies could be interpreted to account for wealth transfer, we are currently in a transition period. To fulfill their obligations, however, fiduciaries need certainty and uniformity. The article suggests reform to existing state and federal laws to ensure that nonprobate-focused federal laws ultimately effectuate the decedent’s intent. The lessons learned from examining the intersection of federal law focused on digital assets and of state fiduciary law extend more broadly to show the unintended consequences of other nonprobate-focused federal laws.

Keywords: trusts and estates, internet law, elder law

JEL Classification: K39

Suggested Citation

Cahn, Naomi R., Probate Law Meets the Digital Age. Vanderbilt Law Review, Vol. 67, 1697-1727, 2014; GWU Law School Public Law Research Paper No. 2014-55; GWU Legal Studies Research Paper No. 2014-55. Available at SSRN: https://ssrn.com/abstract=2530631

Naomi R. Cahn (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-6025 (Phone)
202-994-5614 (Fax)

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