Digital estate – inheritance in the 21st century

In the event of death, the estate nowadays usually consists not only of traditional inheritance assets such as real estate, capital, and personal effects, but also of digital assets, data and online accounts. Particularly in the case of data that is only stored on the internet, Swiss inheritance law does not have a clear inheritance regulation. For this reason, it is advisable to think about the digital inheritance in advance.

In the area of data left on hard drives or similar storage media, the answer of inheritance law is clear. These are passed on to the heirs in their physical form. The situation under inheritance law becomes more complicated if the data is not on a physical medium but is only accessible via a user account with the corresponding password on a cloud. As a rule, such data does not belong to the assets. Rather, it is a matter of personal rights, which in principle do not pass to the heirs.

This raises the question of what happens to the user accounts that the deceased has for example with Google, Facebook or crypto wallets. First of all, it should be noted that the regulations differ from country to country. The terms & conditions of the large technology companies Facebook, Twitter and Google contain a choice of law clause in favour of Californian law. However, these are not likely to be valid in Switzerland in view of Art. 120 of the Federal Law Against Unfair Competition. Nevertheless, the enforcement of claims under inheritance law regularly entails lengthy court proceedings.

As a rule, the relationship between the online providers and the deceased user is a contractual one. Against the background of universal succession, heirs assume the contractual position of the deceased. Nevertheless, the question arises as to whether the heirs have access to the deceased’s user account and, if so, how this is structured. Conceivable options would be, for example, the delivery of a list of data, delivery to the data (or part of it), access to the user account without the possibility of changing it, or unrestricted access to the user account. In Switzerland, this question has not yet been decided by the courts. Swiss authors who have published on this topic refer to the recent judgement of the German Federal Court of Justice, which granted a mother access to the Facebook-account of her deceased daughter. Specifically, it ordered Facebook to give the heiress (mother) the same access to the data – with the exception of active use – that the deceased had. A Swiss court is likely to reach the same conclusion.

In view of the unwillingness of online providers to grant heirs access to account data, it is advisable to also consider the regulation of data in estate planning. This can be done, for example, by giving the access data to a desired person so that access is not lost after death. This is especially important for accounts that contain personal information or certain monetary data. A good example of this is the access key to a crypto wallet.