Digital estate

In the age of digitalization, the buzzword "digital legacy" is becoming increasingly common. Even if it doesn't seem like it at first glance, the digital legacy is a topic that now affects almost everyone. To name just a few examples: Email accounts, streaming services, Bitcoin, apps, Facebook and all other social networks. This area will play an increasingly important role in the future.

For a long time, it was disputed how digital estates should be treated in the event of inheritance. However, the Federal Court of Justice has now made a fundamental decision on the question of inheritance (judgment of 12.07.2018). The decision was based on a case from 2015 that illustrates the relevance of the digital estate:

A 15-year-old girl died as a result of a subway accident. Facebook then set the girl's profile to a so-called memorial state. In this state, it is no longer possible (even with the correct access data) to access the profile of the deceased and make changes or delete the profile. The girl's parents hoped that the analysis of the chat messages would shed light on the exact circumstances of the teenager's death.

In its ruling, the Federal Court of Justice clarified that the principle of universal succession in accordance with Section 1922 of the German Civil Code also covers the digital estate. To put it bluntly: inheritance law does not differentiate between the "real" and the "digital world".

According to Section 1922 I BGB, all contractual rights and obligations of the deceased pass to their heirs at the time of their death. This means that the heirs take the place of the testator without restriction. In principle, the law assumes that all assets of the deceased are inheritable, unless the non-inheritability of an asset is explicitly regulated. The purpose of Section 1922 I BGB is to ensure continuity in legal transactions and to create clear allocation relationships after a person's death.

Applied to the user account of a social network, this means that although the heirs cannot directly use the account as their "own" account, they can exercise all rights that the deceased had vis-à-vis the service provider - including the right to delete the account.

In its ruling, the BGH clarifies that any protection of the communication partner does not take precedence over inheritance law. A right to confidentiality cannot be derived from the post-mortem right of personality - at least vis-à-vis the heirs.

According to the ruling, the BGH sees no reason to treat digital content differently from physical documents with a personal connection to third parties (e.g. letters, diaries, etc.).

Dealing with the digital estate remains problematic, if only because it will often be difficult for heirs to trace the deceased's activities on the internet - at least without appropriate documentation. However, in order to be able to exercise rights to the digital estate, the heirs must have knowledge of these activities.

However, if the heirs have the relevant knowledge, they are also entitled to access the deceased's digital estate.

The above explanation is intended to provide an initial insight into the topic of digital estates. It is not a substitute for advice in individual cases.

If you have specific questions or would like an assessment of your case, we will be happy to provide you with an initial consultation at any time. The costs of such a consultation amount to a maximum of EUR 190.00 plus VAT. The length of the consultation and the size of your assets are irrelevant.

Status: 30.12.2022