After death, our digital lives persist. Digital remains raise complex questions surrounding the ownership, privacy and dignity of people after death.
The past lingers, both in photographs and online footprints. Photo by Kirk Cameron
Article by Adam Green, freelance journalist
Alongside traditional estates, we now leave behind digital remains after we die, from social media accounts and emails to AI-generated recreations of ourselves. Our digital legacies are creating new and potentially troubling questions about autonomy, and dignity after death.
Dr Edina Harbinja, Associate Professor of Law at the University of Birmingham, is spearheading a pioneering initiative to modernise European law to respond to novel questions about access, inheritance and privacy. The new model laws Dr Harbinja is creating will be the first of their kind and will set the standard for how digital succession is regulated around the world.
A leading expert in the field of digital succession, Dr Harbinja defines personal digital remains as personal data under the EU’s General Data Protection Regulation or identity-related representations of the deceased. This definition captures not just our digital accounts and files, but technologies like "grief bots" or "ghost bots" which use a deceased person's digital footprint to replicate them.
Companies such as HereAfter AI and Project December now offer such services, prompting heated debate. Critics warn of negative psychological effects during grief and the commodification of human relationships, reshaping connections in ways that aren't always positive. "One thing is clear: legal frameworks need to evolve to better respond to the kinds of questions and risks emerging in the digital hereafter," says Dr Harbinja.
Digital remains refer to the digital assets, personal data, digital traces, and identity-related representations that persist after an individual’s death. In practical terms, they may include:
Unlike traditional assets, digital remains often lack clear ownership, are governed by platform contracts rather than succession law, and sit uneasily between privacy, data protection, personality rights, and property law.
The term "digital remains" includes personal digital data and digital assets, forming part of a person's digital estate. However, a distinction has emerged in practice between conceptualisations of personal digital remains and digital assets, with the latter typically referring to items with financial value. Digital financial assets have garnered attention in UK parliamentary research briefings, for example. This focus intensified in December 2025, when new English and Welsh legislation formally recognised digital assets as property.
There is a lively debate about whether to frame digital remains primarily through the lens of privacy or property, with property law currently dominating discourse. But there are broader, fundamental questions about, for instance, the right to privacy after death.
Memories once in albums now exist online, raising legal questions. Photo by Laura Fuhrman
Posthumous privacy, according to legal scholars, should ‘transcend death, allowing individuals to control their privacy, identity and personal data post-mortem, analogous to their post-mortem control of property through the concept of testamentary freedom.’
"The main theoretical concerns I have relate to the lack of control, privacy, autonomy, the lack of respect to those remains, and the lack of respect to people's dignity after death and their will," explains Dr Harbinja. "This also involves debate on questions such as 'what is harm to the dead? Do they have agency at all? Should we respect their dignity and privacy?'"
Beyond philosophical concerns, there are legal complexities. Because the field is so new, law has struggled to keep pace, hindering strategic litigation (cases which seek to create a significant widespread change in law) and creating confusion around whether digital remains fall under privacy law or laws governing wills and succession.
"Solicitors and barristers in the UK have expressed their concerns around legal uncertainties, and they can't advise their clients properly because they risk liability," notes Dr Harbinja.
Meanwhile, research shows that people want control over their digital remains, but awareness and knowledge about how to manage them are low – a phenomenon which legal scholars named the ‘posthumous privacy paradox.’ Complicating matters further, attitudes about death vary significantly across cultures, which could impinge efforts to develop a harmonised framework.
Dr Harbinja will be co-convening a number of panels on 'Death, Dying and the Dead' at the Socio-Legal Studies Association (SLSA) Annual Conference 2026.
Dr Harbinja's empirical study has revealed some unanticipated findings about what people actually want. "Surprisingly, the majority of people would allow access to their digital assets in a granular way with certain levels of access to different accounts," she says. "They want to permit this access to those that they trust, not necessarily heirs, and this shows certain diversions from succession law."
This disconnect between traditional inheritance frameworks and people's actual wishes suggests current legal structures may not adequately serve the needs of individuals navigating digital legacies. Moreover, whilst people want control, they often don't know how to exercise it.
In the absence of clear legal frameworks, major technology platforms have introduced limited mechanisms to manage users’ digital remains:
These mechanisms operate through platform governance rather than law. Concrete legal reform and clarification will be essential to ensure consistent, rights-based approaches to digital remains.
Death ends life, but online presence can persist indefinitely. Photo by Rodion Kutsaiev
Dr Harbinja is now co-leading a project through the European Law Institute (ELI), an organisation part-funded by the European Union, to create model law that harmonises key provisions on the definition of digital remains, access and inheritability, and data protection issues. It marks the first international attempt to produce a comprehensive model law for digital succession.
The approach rests on two pillars. The first focuses on digital assets resembling traditional property; items with features like control and transferability. "For them, we propose a traditional succession law regime, where people pass on their digital assets to heirs whether by will or intestate succession," Dr Harbinja explains. Cryptocurrency exemplifies this category.
The second pillar addresses personal digital remains. "For these, we don't propose a succession law regime, because we don't believe that these are property," says Dr Harbinja. "They shouldn't be commodified, because that's the equivalent to commodifying a person. We propose instead an access regime so if the deceased hasn't made a decision on personal digital remains, then heirs would have access."
This second pillar poses the greater challenge for implementation, particularly regarding jurisdictional coordination. "The EU has competency in data protection, human rights, and technological regulation, but it doesn't have any competency in succession law and property in contracts, which is all member state level," notes Dr Harbinja.
In 2012, a 15-year-old girl died after being struck by a train in Berlin. Her parents sought access to her Facebook account to understand the circumstances of her death, including whether it may have been suicide.
Facebook refused access, arguing that:
The parents challenged Facebook’s refusal, arguing that:
The case escalated through the German courts and reached the Federal Court of Justice.
Germany’s highest civil court ruled in favour of the parents, holding that:
Facebook was ordered to grant the parents full access to the account.
Dr Harbinja’s model law initiative includes extensive multi-stakeholder input. "We had a Members Consultative Committee, and consulted with the project advisory board and individual ELI members. They have thousands of members in practice and academia, and they've shared feedback with us across the last two years," Dr Harbinja explains. Contributors included lawyers and specialists from across Europe, plus input from organisations such as the Digital Legacy Association and STEP (Society of Trust and Estate Practitioners) in the UK. The resulting proposals therefore reflect "scholarship, doctrine and evolving technological considerations."
Every click, post and message may outlast us. Photo by Giles Lambert
As technology continues to evolve, the questions surrounding digital remains will only grow more pressing. Ghost bots may be followed by even more sophisticated technologies that blur the lines between the living and the dead. Without robust legal frameworks respecting both privacy and property rights, families and loved ones will continue to face unnecessary stress navigating these issues during already difficult times.
The University of Birmingham and Dr Harbinja’s ground-breaking work is bringing more clarity to an uncertain legal domain. Meaningful reform will require strong coordination across jurisdictions, cultures, and legal traditions, alongside concerted efforts to help people understand and use the tools already at their disposal.
The stakes are high. At issue isn't merely administrative convenience, but fundamental questions of autonomy, dignity, and how we honour the wishes of the deceased. As Dr Harbinja's research demonstrates, people want control over their digital afterlives and the legal profession needs clarity. The challenge now is ensuring the law catches up to make that control a reality.
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Associate Professor in Law
Academic profile of Dr Edina Harbinja, Associate Professor at Birmingham Law School, University of Birmingham
