Recently the European Law Institute’s (ELI) Model Rules on Succession and Access to Digital Remains were approved, marking an important milestone in the development of digital inheritance law.

Developed by leading experts (including Dr Edina Harbinja of the University of Birmingham) and supported by STEP, the Model Rules provide the first comprehensive framework for dealing with digital assets and personal digital content after death.

As technology becomes increasingly embedded in everyday life, people are leaving behind far more than traditional physical possessions. For example, digital estates may now include:

• email accounts and cloud storage;
• social media profiles and other online communications;
• cryptocurrencies and digital financial assets;
• online businesses;
• photographs and personal archives stored online; and
• AI-generated digital representations of an individual.

However, the existing legal framework that has governed these assets has struggled to keep pace with technological change.

Addressing a growing legal gap

Until now, there has been no coherent approach to determining who should inherit, access or manage digital remains while balancing the privacy, dignity and wishes of the deceased.

The ELI Model Rules seek to address this legal gap by providing a blueprint for legislators, courts and practitioners to develop laws and policies in this area. A key principle behind the Rules is that digital assets should not all be treated in the same way.

A dual framework for digital inheritance

Rather than applying traditional succession law or data protection rules to all digital assets, the Model Rules establish two distinct approaches:

• Digital assets with economic value: For example, cryptocurrencies or other transferable digital property are dealt with through ordinary succession law and
• Personal digital remains: This includes emails, social media accounts and other content closely connected to an individual’s identity. It proposes that these are governed through a safeguarded right of access rather than inheritance.

This distinction is important as it recognises that digital content can have both financial and personal significance. It also acknowledges that protecting privacy and personal autonomy is just as important as determining ownership.

The Rules also address situations where economic assets and personal data are intertwined. They introduce a structured process designed to protect privacy while ensuring the deceased’s wishes are considered before assets are transferred.

Preparing for the future of digital estates

The Model Rules also respond to emerging challenges that are becoming increasingly relevant for succession planning, including:

• AI-generated digital representations, sometimes referred to as ‘deadbots’;
• the responsibilities of online service providers;
• protecting the privacy of third parties whose information may be included in digital accounts; and
• managing cross-border digital estates within existing European private international law frameworks.

For practitioners advising clients, digital assets are no longer a niche consideration. They are becoming an increasingly valuable and complex part of modern estates, making clear legal principles essential.

Significant progress towards legal certainty

As succession planning evolves to reflect the realities of the digital age, the ELI Model Rules represent a welcome contribution to the international debate on digital inheritance.

They provide guidance on some of the most challenging questions facing policymakers and practitioners today, including:

• Who should have access to digital remains?
• How should privacy be protected?
• How can individuals maintain control over their digital identity after their death?

While the Model Rules are not legally binding, they represent significant progress towards a more coherent approach to digital inheritance.

As digital estates continue to grow in size and complexity, the Rules provide a valuable foundation for future legislative and policy developments which will help succession law evolve alongside technological developments.

Read more about the Model Rules on Succession and Access to Digital Remains

Emily Deane TEP, Technical Counsel and Head of Government Affairs, STEP