Minors and Digital Asset Succession

By Banta, Natalie M. | Iowa Law Review, May 2019 | Go to article overview

Minors and Digital Asset Succession


Banta, Natalie M., Iowa Law Review


I. Introduction

On average about 16,000 teenagers die in the United States each year.1 The 14 teenagers who were killed in a school shooting in Parkland, Florida, on February 14, 2018 are a testament to the tragic and sobering ways that minors unexpectedly and prematurely die in our nation.2 As of now, minors do not have the right of succession, that is, they are legally incapable of deciding how their property is distributed at death. The law governing minors' legal capacity to devise property is based on precedent that extends into the early 19th century and has been relatively unchanged in our nation. For many of the 16,000 teenagers who die each year their inability to devise property will not be problematic. Most minors do not own significant property interests, and if they do, the default rules of intestacy laws operate to give their property to their parents, which is probably what most minors would want anyway.3 But minors' property interests are changing in the digital world because they hold a significant number of digital assets.

Minors who die in the United States hold a property interest in assets that did not exist when the law established 18 as the age of legal capacity. The majority of minors own digital assets-email, social networking, documents, photos, text messages, and other forms of digital media.4 Minors' digital assets hold a treasure trove of information about their daily lives, information and memories that would be much more valuable to surviving friends and families if a minor were to die as well as information that perhaps a minor would prefer to be deleted upon her death.5 Children's toys are becoming more interactive. The toys respond to a child's questions, tell jokes, listen and create a record of interaction with the child as soon as they can talk.6 The category of digital assets that minors use, control, and create is only going to increase in the coming years as new toys, apps, and forms of entertainment and education for minors are developed.

Under the current law, minors have no right to decide what happens to their digital assets. They lack legal capacity to execute a testamentary document that would have controlling effect upon their death. Giving minors the right of succession over their digital property gives them the ability to decide whether these assets should be deleted or transferred at their death and who should be able to obtain access. In many cases, minors might choose their parents, but in some situations, minors would choose someone else. Granting the right to devise digital assets gives a minor the power to choose.

Minors' inability to devise digital assets needs to be reexamined in light of the prevalence of digital assets and minors' command and fluency in understanding the nature of digital assets. From a young age, children become proficient users of new technology. These "digital natives," or children that grow up in the digital age, have different expectations relating to their digital property and a significant amount of familiarity with digital assets throughout their lives than the generation before them. According to Pew Research Center, "[n]early two-thirds of youth and parents agree that the children know more about the Internet than their parents do."7 In a quarter of American families who have access to the Internet, young children are more digitally proficient than their parents.8 With their increased familiarity with the Internet and technology, minors create and possess digital assets with troves of information, pictures, and writings about their young lives. This information is valuable to surviving family members as well as potential marketers and industries. Minors have a sizeable footprint in the marketplace and contribute value to the economy.9 It is estimated that teenagers have a purchasing power of $118 billion in North America.10 Despite the purchasing power of minors and the prevalence of minors using digital assets, minors are unable to control what happens to their digital assets at their death. …

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