The Florida Fiduciary Access to Digital Assets Act

Every other case in this section of the archive is a story about somebody who could not get in. This one is the statute that tells you how.

Florida enacted the Fiduciary Access to Digital Assets Act as chapter 2016-46, Laws of Florida, effective July 1, 2016. It is codified at Fla. Stat. Ch. 740 and is Florida's version of the Uniform Law Commission's Revised Uniform Fiduciary Access to Digital Assets Act — RUFADAA — which nearly every state has now adopted in some form.

The problem it solves is genuinely hard, and it is worth stating before the rules. When someone dies, their executor can open their mail, because mail is paper and paper is property. Their email is not property in the same sense. It sits on a company's server, governed by a contract the decedent clicked through, and protected by a federal criminal statute — the Stored Communications Act, 18 U.S.C. §2701 et seq. — that makes it an offence for the provider to hand over the contents of communications except in listed circumstances.

So for roughly a decade, providers said no to grieving families and were, in a narrow legal sense, right to. Chapter 740 is Florida's answer: it does not repeal the federal statute. It supplies the lawful consent the federal statute has always accepted, and it builds a procedure around it.

Three tiers, in strict order

§740.003 is the load-bearing section of the entire chapter, and it establishes a hierarchy that most people get backwards.

• Tier one — the online tool. §740.003(1). A user may use an online tool provided by the custodian to direct disclosure or non-disclosure of digital assets, including the content of electronic communications. If the tool lets the user modify or delete the direction at any time, that direction overrides a contrary instruction in a will, trust, power of attorney, or any other record. Your Google settings beat your will. Read that again.
• Tier two — the estate-planning document. §740.003(2). Where the custodian provides no online tool, or the user did not use it, the user may direct or prohibit disclosure in a will, trust, power of attorney, or other record.
• Tier three — the terms of service. §740.003(3). A user's direction under tier one or tier two overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from assenting to the terms generally. Translated: clicking “I agree” once, at signup, is not a decision about your estate.

The consequence of that ordering is practical and slightly uncomfortable. A settings page you can change in ten seconds sits above a document you paid a lawyer to draft. It is defensible — the online tool is the most recent, most specific, most obviously deliberate expression of intent — but it means an estate plan that never mentions the online tools is an estate plan with a hole in it.

The corresponding drafting duty is to make the two agree. If the will says the personal representative may access the decedent's accounts and the Google Inactive Account Manager names somebody else, the Google setting wins, and the fight that follows is a family fight rather than a legal one.

What Chapter 740 does not do

Four limits, each of which disposes of a question clients actually ask.

It gives no new rights. §740.004(2) is explicit: the chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user. If the user could not do it, neither can the fiduciary. This is the sentence that ends most crypto conversations — a self-custodied wallet has no custodian to serve, and no statute conjures a private key.

It does not override the contract, only the fine print about death. §740.004(1) preserves the custodian's and the user's rights under the terms of service, and §740.004(3) allows a fiduciary's access to be modified or eliminated by the user, by federal law, or by the terms of service where the user gave no direction under §740.003. Silence loses.

It does not authorise impersonation. §740.05(2) subjects the fiduciary's authority to the terms of service, to other law including copyright, and to the scope of the fiduciary's duties — and says the authority may not be used to impersonate the user. Logging in as the deceased is not the plan.

It does not reach employer accounts. §740.08 excludes a digital asset of an employer used by an employee in the ordinary course of the employer's business. The work laptop is a different problem.

What you actually send, and to whom

The chapter splits every request along one line: content versus catalogue. Content is the substance of a communication — what the email says. Catalogue is the metadata — who was written to, when, at what address. §740.002(4) and (5) define both. Catalogue is far easier to get, and for most estate administration it is enough: it tells the personal representative which banks, brokers, insurers, and subscription services the decedent dealt with.

For a deceased user's content — §740.006. Available only if the user consented or a court directs. The personal representative must give the custodian: a written request; a certified copy of the death certificate; a certified copy of the letters of administration, curator or administrator ad litem order, order of summary administration under chapter 735, or other court order; and — unless the user used an online tool — a copy of the will, trust, power of attorney, or other record evidencing the user's consent to disclosure of content. If the custodian asks, also an account identifier, evidence linking the account to the user, or a court finding.

For a deceased user's catalogue and other digital assets — §740.007. Unless the user prohibited disclosure or the court directs otherwise, the custodian shall disclose. Requirements: written request, certified death certificate, certified letters or equivalent order, and if the custodian asks, an account identifier, evidence linking the account, an affidavit that disclosure is reasonably necessary for administration, or a court order to that effect. Note what is missing from that list: the consent record. The catalogue does not require it.

For a trustee — §740.01 to §740.03. Where the trustee is the original user of the account, §740.01 requires the custodian to disclose everything, content included, with no further showing. Where the trustee is not the original user, §740.02 (content) and §740.03 (everything else) require a written request, a certified copy of the trust instrument or a certification of trust under §736.1017, and a certification by the trustee under penalty of perjury that the trust exists and the trustee is currently acting.

For an agent under a power of attorney — §740.008 and §740.009. This is the trap. Content disclosure under §740.008 requires that the power of attorney expressly grant the agent authority over the content of electronic communications. A general durable power of attorney that does not say those words does not reach the email. Non-content assets under §740.009 are easier, but the express-authority requirement for content is a drafting item, not an afterthought.

Then the clock. Under §740.06, a custodian must comply not later than 60 days after receiving the required information, and a fiduciary may seek a court order compelling compliance. A custodian that complies in good faith is immune from liability. §740.005 gives the custodian options — full access, partial access, or a copy in a record — permits a reasonable administrative charge, excuses disclosure of assets the user deleted, and lets either side ask the court to sort out a request that would impose an undue burden.

What a Florida digital-assets clause has to say

Chapter 740 is a permission structure. It works only if somebody gave permission. Four places have to line up.

• The online tools, set. Apple Legacy Contact, Google Inactive Account Manager, Facebook legacy contact. Tier one. Ten minutes.
• The will. Express consent to disclosure of the content of electronic communications to the personal representative, plus authority over digital assets generally. Without the consent language, §740.006 is unavailable and only the catalogue comes through.
• The trust. Same consent language, plus a statement that the trustee may hold and administer digital assets. Where the trust holds the accounts, §740.01 makes life very easy — but only if the trustee is the original user, which means the accounts were opened by or transferred to the trustee.
• The durable power of attorney. The express grant of authority over the content of electronic communications required by §740.008. Florida's power-of-attorney statute does not list digital assets among the authorities in §709.2201(3) or the separately enumerated powers in §709.2202, so this language comes from Chapter 740, not Chapter 709 — and it has to be written in.

One more housekeeping point that catches people. §740.11 provides that no act taken under the chapter affects a person's obligation to deposit a will with the clerk under §732.901 — within 10 days of learning of the death. Finding the will in the decedent's cloud storage does not privatise it. It still goes to the clerk.