Can heirs access the deceased's digital accounts?

No one wants to experience it, but unfortunately everyone encounters it at some point in their lives: the death of a loved one, such as a family member or partner.

These days, everyone has one or more agreements with digital service providers regarding an email address (hotmail, gmail), a cloud service (Dropbox, Onedrive) or social media accounts (Facebook, Instagram etc). These services are usually secured with a username and password that only the user knows. In a case of death, the deceased person takes this data with him into his grave.

However, it is often practically and emotionally important for those who remain to be able to access the digital accounts of the deceased person. Practical to access important information needed to settle the estate or other matters, or to answer correspondence or notify contacts about the death. Emotionally, it can be equally important, for example, to access photo materials the deceased person stored in the cloud.
Can the heirs ask these service providers to transfer the deceased person's account to them?

A Dutch court recently faced a question from the parents and sisters of a man who died in July 2021, who had asked Microsoft to provide access to the deceased's Hotmail account and OneDrive account. Microsoft refused to do so, but the Amsterdam court, in a judgment of December 1, 2021, Microsoft to grant access. Indeed, according to the Dutch court, the heirs by operation of law take the place of the deceased person and continue all agreements, including those with the digital service provider. Accordingly, Microsoft was ordered to grant the heirs access to the account by resetting the password and allowing at least one other account of the heirs to subsequently set a new password.

Previously, the German Federal Supreme Court had also ruled that Facebook had to grant a mother access to her deceased daughter's Facebook account (see rulings from July 12, 2018 and August 27, 2020).

Belgian law should also be judged in the same way. In accordance with Article 724 Old Civil Code the heirs automatically enter into possession of the deceased's property, rights and legal claims. An agreement with a digital service provider constitutes a right or legal claim. Article 1122 Old Civil Code stipulates that one is deemed to have stipulated for himself and for his heirs and assigns, unless the contrary is expressly stipulated or arises from the nature of the contract.

If the user agreement states that it is closed "intuiti personae" and cannot be transferred to another person, this could be an impediment to denying access if necessary. However, most user agreements do not state this.

In any case, the fact that these agreements are (too) personal in nature to pass under general title cannot be an argument, since - in the field of personal data - the General Data Protection Regulation (GDPR/AVG) does not apply to persons who are no longer alive (cf. preamble 27).

Ultimately, there is little difference from the "analog" world where the heirs are also given possession of the deceased person's personal items (such as photo books or letters) that would be found in his home.

Heirs are thus expected to continue all agreements of the deceased person, including therefore (user) agreements with digital service providers. They should therefore also have access to the deceased person's account. Note: this applies only to heirs and not to friends or a (cohabiting) partner.

How can we assist you?

We assist heirs, as attorneys, in disputes with digital service providers (related to emails, social media, cloud storage) to access the digital accounts of deceased individuals.