THE FACEBOOK REVOLUTION – IMPLICATIONS ON DEATH AND INCAPACITY

A German Federal Court has recently granted the parents of a deceased 15 year-old girl, the right to access their deceased daughter’s Facebook account.

So where does this leave us in relation to deciding who can inherit and deal with our digital assets, such as our Facebook accounts, on our death?

Facebook is a commonly used social media platform with approximately 2.3 billion users around the world.  It is estimated that 50 million Facebook users have died since its inception and that at least three million Facebook users die every year.

There are many people who share their entire lives on social media platforms, such as Facebook.  Not only are there sentimental photographs stored, but there are often very personal details shared.  It is commonly a timeline of a person’s life.  It is therefore an individual’s human right to decide who has the power to control such digital asset, either on their death or in the event of their incapacity.

To this end, Facebook enables an authorised person to either delete or memoralise a deceased person’s account.  Even in respect of these two options, the Facebook user, whilst capable and living, has the right to designate the option they would prefer (i.e. to have their account closed down on their death and not memoralised).

In order to close down a person’s account due to mental incapacity or death, Facebook requires proof of death/incapacity and one or more of the following relevant documents:

  • Power of Attorney;
  • Last Will;
  • Estate letter;
  • Birth Certificate

In the absence of any proper direction or appointment under a deceased person’s Will (or Power of Attorney) as to who is intended to own and/or control a person’s Facebook account on his or her death or incapacity, Facebook would ordinarily grant this right to the deceased/incapacitated person’s immediate family member, in the absence of any Court order to the contrary.  To further complicate matters, however, Facebook users are able to add a ‘Legacy Contact’ to their account, who would serve to control/manage their account in the event it was memoralised (whether due to incapacity or death).

In this regard, it is quite concerning to think about what could happen in the case of a separated couple who were not yet divorced at the time of death, where, either by classification as an immediate family member, the notation as a legacy contact to their spouse’s Facebook Account or by appointment as an executor under a Will or an attorney under a Power of Attorney that had not yet been changed since the event of separation, the ex-partner could gain control over a key digital asset such as Facebook!

If you have a Facebook account, or any other key digital asset, get your estate planning in order to avoid such chaos!

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