An Update On A Fiduciary’s Access To The Digital Records Of A Decedent

December 19, 2017

A recent post to this blog titled You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death?, discussed New York’s recently-enacted digital assets legislation, and Surrogate Mella’s decision in Matter of Serrano, regarding 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).

As readers may recall, 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.). However, Surrogate Mella denied the fiduciary’s request to access the contents of the decedent’s Google email account.

In a recent decision, Surrogate Czygier of Suffolk County addressed this very issue. In Matter of White,10/3/2017 NYLJ p. 25, col. 1, a fiduciary sought access to a decedent’s Google e-mail account, contending the information would identify assets and aide in the administration of the estate. The fiduciary believed that the decedent may have owned a business at the time of his death and that an assessment of the business could not be completed without obtaining access to the information contained in the decedent’s Google account. She indicated that there were no other authorized users to the account and that Google refused to grant her access without a court order. No one appeared in opposition.

The court noted that Article 13-A of EPTL sets forth the grounds for access, as it is applicable to an administrator acting for a decedent who died after the enactment of the statute. The court further noted that although Google “provides an ‘online tool’ to grant access to ‘trusted contacts’ after a period of inactivity, it does not appear that decedent activated this feature; nor did decedent address disclosure of his digital access via a will, trust or other record” (see id.). Petitioner averred that access should be granted as there was no state or federal law prohibiting disclosure of the contents stored in decedent’s account.

Surrogate Czygier disagreed, denying the fiduciary’s request to access the contents of the decedent’s Google account. The Surrogate wrote: “Although no one has appeared in opposition to the requested relief, in this evolving area, the undersigned is concerned that unfettered access to a decedent’s digital assets may result in an unanticipated intrusion into the personal affairs of the decedent or disclosure of sensitive or confidential data, for example, information unrelated to his business or corporation. Thus, the court must balance the fiduciary’s duty to properly administer this estate, while avoiding the possibility of unintended consequences” (see id.).

Consistent with Surrogate Mella’s decision in Matter of Serrano, the Court granted the relief solely to the extent that Google should disclose the contact information stored and associated with the account, noting that to the extent greater access to the account appeared warranted an application may be made to expand the authority. This decision reaffirms Surrogate Mella’s application of Article 13-A in Matter of Serrano.