New Model Rules mark meaningful step towards digital inheritance laws

The European Law Institute (ELI) has approved its Model Rules on Succession and Access to Digital Remains, providing the world’s first comprehensive framework for dealing with digital assets and personal digital content after death.

The rules have been co-designed by Dr Edina Harbinja, Associate Professor in Law at the University of Birmingham, and are the first attempt to create a comprehensive model law governing digital succession.

The Model Rules address a huge gap and increasingly complex questions in European private and public law surrounding access to social media accounts, personal data, cryptocurrency and other digital assets when someone dies.

Intended to serve as a blueprint for national legislation and to inform future European policy initiatives, the ELI Model Rules are contributing to a coherent and future-proof framework for the management of digital remains.

Dr Edina Harbinja said: “When we die, we don’t just leave behind physical ‘real world’ property anymore. Our lives are so intertwined with the internet and digital world that now, when someone dies, they leave behind online accounts, cloud storage, social media profiles, digital wallets, creative works, and AI-enabled digital representations (also known as ‘deadbots’).

“But, as digital technology and platforms have accelerated at pace, our legal systems have struggled to keep up. There are urgent and fundamental questions about who may inherit, access, or manage these digital remains while respecting privacy, dignity and the wishes of the deceased that we do not currently have the answers to. Our new Model Rules, which have now been approved by the ELI, seek to address the chasm that exists in the law when it comes to our protection, assets and digital rights after death.”

The newly approved Model Rules offer an innovative and practical solution by recognising that not all digital remains and assets should be treated the same. Instead of forcing everything into traditional succession law or data protection law, the Rules establish a dual legal framework:

• Digital assets with economic value are transferred through the ordinary law of succession.

• Personal digital remains, closely connected to the deceased's identity, privacy, and dignity, are governed by a carefully safeguarded right of access rather than inheritance.

The Rules also address common occurrences where economic assets and personal data are intertwined. Dr Harbinja and her co-reporters introduce a structured process that protects privacy and gives effect to the deceased's wishes before digital assets are transferred to successors.

The Model Rules also provide practical guidance on issues that increasingly arise in modern estates, including ‘deadbots’, the responsibilities of online service providers, the protection of third-party privacy, and the handling of cross-border digital estates within the existing framework of European private international law.

Dr Harbinja added: “AI is a huge area of investment for governments all around the world, but it is also a topic that proposes challenges around regulation and the law when it comes to individual ownership and control. We are increasingly seeing celebrities sign deals with AI companies to use their likenesses and voices after they die, or trying to stop them from using them altogether.

“Without a clear legal framework, there is no way for people - not just celebrities - to meaningfully navigate the law so that people can have real control of their digital selves and likenesses after they die.”

Emily Deane TEP, Technical Counsel and Head of Government Affairs at STEP (Society of Trust and Estate Practitioners), which was part of the advisory committee and supported the project, said: “As succession planning evolves to reflect the realities of the digital age, clear legal frameworks are essential.

“The ELI Model Rules are a welcome and significant contribution to the international debate on digital inheritance, helping to address complex questions around ownership, access, privacy and personal autonomy after death. We hope they will provide a valuable foundation for future legislative and policy developments in this area.”

The Model Rules combine legal certainty with respect for autonomy, dignity, and privacy. They are designed to support legislators, courts, legal practitioners, service providers, and citizens in addressing one of the defining legal challenges of the digital age.