Social Media and Death

Continuing on my unintended multi-part series on social media and the law…this week we talk about what happens with your social media when you die.

There are very few directives that you can make in Ontario which will have any legal effect after you die. Organ donation is subject to the consent of your next of kin; your burial wishes, again, will depend ultimately on what your next of kin desire; likewise, what happens to your social media accounts will depend on a host of factors, outside of your control. About the only certainty you can have, is that the property you give away in your Will, be distributed according to your wishes – subject of course to any debts, public policy priorities or other factors…

As social media becomes a more important part of a person’s (or a company’s) brand, different groups have been taking various approaches to social media post mortem. The media companies have developed some interesting policies – Facebook allows your family to turn your profile page into a memorial site; Twitter will deactivate an account after being provided with a notarized statement and some supporting documents; major e-mail providers alternate as to whether they will or will not provide account access to next of kin. There are also a few third party services available that are designed to delete your accounts en masse, upon some triggering event, such as your death.

This presents difficulties when it comes to estate planning. As these services are not property, they can’t be addressed in a Will. Some government authorities have suggested that it’s important to think about and plan for your social media after your death, but none have passed any legislation that governs this area – not yet anyway. It’s a little bit of the wild west.

The best way to deal with the problem that I’ve seen is in the use of advance directives (one for personal accounts, and one for business accounts) that express your last wishes (or tweets?) and give your Estate Trustee the passwords required to give effect to those wishes. Granted, this is probably a violation of most social media terms of service policies, but it’s probably the most workable. A notification as to the existence and location of the advance directive, placed in a Will can also be a helpful adjunct in ensuring that social media gets dealt with in a timely manner after your death.

The area is evolving and I suspect in ten years, we’ll have an entirely new way of thinking about these issues, but for now, this seems like the most sensible strategy.

Scott R. Young

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