You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death?

July 24, 2017

E-mail is seemingly omnipresent. Day in and day out, we use it in our business, social, and personal affairs. Yet, the improvements to the technology associated with e-mail have far outpaced the development of the law concerning our e-mail accounts and the rights that our survivors may have to access those accounts upon our deaths. This post addresses New York’s recently-enacted digital assets legislation, as well as Surrogate Mella’s well-reasoned decision in Matter of Serrano, which appears to be the first reported case to apply that legislation.

In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”) (see Matter of Serrano, 2017-174, NYLJ 1202790870327 [Sur Ct, New York County June 14, 2017]). Article 13-A seeks to balance the tension that may exist between (a) the well-settled notion that the fiduciary of a decedent’s estate stands in the decedent’s shoes after the decedent’s death, and (b) the public policy that favors respecting the decedent’s privacy upon the decedent’s demise (see Legislative Memorandum in Support of Article 13-A).

Under Article 13-A, except where a deceased user has prohibited disclosure of digital assets before death, or a court orders otherwise, the custodian of electronic records has a statutory duty to disclose to the personal representative of the decedent’s estate “a catalogue of electronic communications sent or received by a deceased user (other than the content of the electronic communications)” upon receipt of the following from the personal representative: (a) a written request for such disclosure; (b) a copy of the deceased user’s death certificate; and (c) a certified copy of the letters appointing the fiduciary (or a small-estate certificate or court order) (see Serrano, supra; EPTL § 13-A-3.2). A custodian of electronic records may request: (a) the username for the deceased user’s account, among other identifying information; (b) “evidence linking the account to the [deceased] user”; (c) “an affidavit stating that disclosure of the [deceased] user’s digital assets is reasonably necessary for administration of the [deceased user’s] estate”; or (d) a judicial determination that the deceased user had an account with the custodian, or that “disclosure of the [deceased] user’s digital assets is reasonably necessary for administration of the estate” (see id.). Critically, Article 13-A defines the term “catalogue of electronic communications” as “information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person” (see EPTL § 13-A-1[d]).

With respect to the content of electronic communications (i.e., the text of e-mails), Article 13-A provides that, where a deceased user has consented to, or a court orders, “disclosure of the contents of electronic communications of the [deceased] user,” the custodian of electronic records “shall disclose to the executor, administrator or personal representative of the estate of the [deceased] user the content of” the deceased user’s electronic communications, if the fiduciary of the deceased user’s estate provides the following to the custodian: (a) a written request for such disclosure; (b) a copy of the deceased user’s death certificate; (c) a certified copy of the letters appointing the fiduciary (or a small-estate certificate or court order); and (d) “unless the [deceased] user provided direction using an online tool, a copy of the [deceased] user’s will, trust or other record evidencing the user’s consent to disclosure of the content of [the deceased user’s] electronic communications” (see EPTL § 13-A-3.1[a]-[d]).[1] A custodian of electronic records may request: (a) the username for the deceased user’s account, among other identifying information; (b) “evidence linking the account to the [deceased] user”; or (c) a judicial determination that (i) the deceased user “had a specific account with the custodian”, (ii) “disclosure of the content of [the deceased user’s] electronic communications . . . would not violate [the federal Stored Communications Act, which Congress “enacted in 1986 as part of the Electronic Communications Privacy Act”,] or other applicable law”, (iii) “unless the [deceased] user provided direction using an online tool, the [deceased] user consented to disclosure of the content of electronic communications”; or (iv) “disclosure of the content of [the deceased user’s electronic communications] is reasonably necessary for administration of the [deceased user’s] estate” (see EPTL § 13-A-3.1[e]).

With the foregoing statutory provisions in mind, Surrogate Mella recently addressed whether the fiduciary of a decedent’s estate had a statutory right to “access his deceased spouse’s Google email, contacts and calendar information in order to ‘be able to inform friends of [the decedent’s] passing’ and ‘close any unfinished business’” (see Serrano, supra). Surrogate Mella was called upon to address this issue after the fiduciary contacted Google in order to obtain such access, prompting Google to request “a court order specifying that, among other things, ‘disclosure of the content [of the requested electronic information] would not violate any applicable laws, including but not limited to the Electronic Communications Privacy Act and any state equivalent” (see id.).

In considering the fiduciary’s right to access the contacts and calendar (i.e., the non-content material) associated with the decedent’s Google e-mail account, Surrogate Mella found that the requested disclosure was warranted and directed Google to make it (see id.). The Surrogate explained that “disclosure of the non-content information is permitted, if not mandated, by Article 13-A of the EPTL and does not violate [the governing federal privacy law]” (see id.).

With respect to the fiduciary’s request to access the contents of the decedent’s Google e-mail account (the actual text of the e-mail messages), Surrogate Mella reached a different result (see id.). The Surrogate wrote: “Authority to request from Google disclosure of the content of the decedent’s email communications – to the extent that [the fiduciary] requests such authority – is denied without prejudice to an application . . . , on notice to Google, establishing that disclosure of that electronic information is reasonably necessary for the administration of the estate” (see id.). Interestingly, the decision does not indicate that the decedent consented to granting the fiduciary of his estate access to the content of his e-mails (see id.).

In light of the foregoing, it appears that, absent a prohibition by the user, the fiduciary of a deceased user’s estate should, in most instances, be granted access to the non-content information associated with the deceased user’s e-mail account upon compliance with Article 13-A. Where the user consents to the fiduciary of his or her estate accessing the content of the user’s electronic communications, or a court orders otherwise, the fiduciary of the deceased user’s estate may be granted access to the content of the deceased user’s e-mail account under Article 13-A. It will be interesting to see how the Surrogates apply Article 13-A in the future.

[1] Article 13-A defines the term “online tool” as “an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person” (see EPTL § 13-A-1[p]). Facebook’s “legacy contact” feature appears to be an example of an online tool.