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Probate Law Meets the Digital Age

Posted by on Wednesday, November 19, 2014 in Articles, Volume 67, Volume 67, Number 6.

Probate Law Meets the Digital Age


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.


Naomi Cahn is the Harold H. Greene Professor of Law, George Washington University Law School. This essay has been prepared for the symposium, The Role of Federal Law in Private Wealth Transfer (Vanderbilt 2014). Thanks to Jerome Borison, Brad Clark, Susan Gary, Adam Hirsch, Jim Lamm, Paula Monopoli, Orin Kerr, Ben Orzeske, Jeff Schoenblum, Jon Siegel, Peter Smith, Suzy Walsh, and Amy Ziettlow. I very much appreciate the pre-symposium careful review by David Horton. I am deeply grateful to Suzy Walsh for her leadership of the ULC’s Uniform Fiduciary Access to Digital Assets Act Drafting Committee, to other members of the Committee for their support, and to Jim Lamm and Gene Hennig for their vision. Thanks also to Jodi Lebolt for research assistance and to Claire Duggan. Cahn was the Reporter for the UFADAA; all views in this article are the author’s own and are not official (or unofficial) policy of the Conference.