Abstract
These digital assets—cryptocurrency, cloud storage, social media handles, digital artworks, and online business accounts—have increased over time and have changed contemporary wealth and legacy. However, the majority of succession laws of the world, including Indian law, continue to be based on the physical and tangible assets; hence, digital property remains outside the purview. This paper critically analyzes the legal void for digital inheritance in India through comparative perspectives from overseas jurisprudence like Italy, Germany, the United States, and the United Kingdom.
It discusses the doctrinal and procedural hurdles heirs encounter in concluding digital assets as a result of restrictive Terms of Service (ToS), legislative confusion, and outstanding post-mortem privacy issues. Particular focus is placed on the milestone judgments from Italy’s Courts of Milan and Bologna and the BGH ruling in Germany, as they upheld heirs’ right to access digital accounts. The study contends that Indian law urgently needs to develop in order to categorize digital property in inheritance regimes, enact digital succession instruments such as e-wills, and require digital service providers to align with posthumous transfer standards.
By a doctrinal and comparative legal approach, this paper seeks to provide practice-oriented suggestions for statutory reform and governance of digital assets in the Indian context. Ultimately, it argues that legal recognition of digital legacy is imperative to provide continuity of personal, cultural, and economic value in the digital era.
Keywords
Digital Succession, Privacy, Access Rights, Platform ToS, Inheritance Law, Post-Mortem Data.
Introduction
The digital revolution has radically changed the composition of personal property. Nowadays, a person’s estate is no longer confined to tangible items such as land, jewelry, or bank savings. It frequently comprises intangible assets such as cryptocurrency wallets, monetized YouTube channels, Instagram influencer accounts, digital photographs on cloud websites, email accounts with sensitive files, and even domains or NFTs (non-fungible tokens) with significant commercial value. Even though they are widely used and increasingly valuable, such assets tend to be lost or unavailable when the owner dies because there are no legal rules for the inheritance of such assets.
In India, where digitization is aggressively encouraged by policies such as “Digital India” and increasing crypto use (over 15 million users, estimated), the need to address the post-mortem legal status of digital assets cannot be overemphasized. Compared to physical assets, which can be bequeathed or transferred through intestate inheritance, digital assets also include complicated license agreement terms and access controls that render succession almost impossible in the absence of prior arrangements.
Real-life examples reveal the extent of the issue. That of Gerald Cotten, the founder of QuadrigaCX—a cryptocurrency exchange based in Canada—is a good example. When he died unexpectedly, almost $190 million worth of digital funds was frozen because he was the only one with the private keys. On similar lines, families of the deceased frequently are turned down by services like Apple, Facebook, or Google when they seek access to photos, emails, or business content of the departed.
This paper analyzes the Indian legal framework on digital inheritance and contrasts it with other jurisdictions that have taken remarkable strides. The objective is to find the loopholes in Indian law and suggest practicable reforms that balance privacy, corporate compliance, and heir rights.
2. Research Methodology
This paper follows a doctrinal and comparative legal research approach. A doctrinal methodology is employed to analyze current Indian and foreign statutes, regulations, and case law regulating inheritance, data protection, and property. Some of the Indian laws include the Indian Succession Act, 1925, and the Information Technology Act, 2000. Judicial interpretations are also analyzed. Furthermore, service provider agreements—namely Apple’s iCloud agreement, Facebook’s memorialization policy, and Google’s Inactive Account Manager—are analyzed to determine how they collude or contrast with inheritance conventions.
The comparative dimension entails examination of legal trends in:
- Italy, via the Court of Milan and Court of Bologna decisions;
- Germany, the Federal Court of Justice (BGH) Facebook decision;
- United States, focusing on the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA);
- United Kingdom, via common law stances and regulatory advice;
- Singapore and Canada have begun to test e-wills and digital succession regulation.
3. Review of Literature
The discourse by scholars on digital inheritance has grown so fast in the past five years. It is a different thing that it remains scattered due to the nascent and interdisciplinary nature of the subject. The categorization of digital assets and the absence of non-stop doctrinal treatment across the most important issues.
In his work on the legal status of electronic assets, Luke Lee (2024) advocated for a “bundle of rights” theory to update the “chose in action” framework. He argues that these digital tokens and online properties are repositories of multiple rights, not merely intangible goods. Rights such as to access, use, transfer, and derive economic advantage. The comparative study of Luke throws light on the matter that countries like Singapore and the UK are considering crypto as property, which is legal.
Under EU law, Agnes Juhász (2023) kept legal treatment of NFTs as the basis of his study. She studied how smart and clever contracts create new types of patented control that old inheritance laws were not able to manage, due to the automatic mechanisms of transfer built into blockchain.
Ilaria Maspes (2022) diverges by examining the conflict between Terms of Service and inheritance rights. She emphasizes how Italian courts skirted platform contracts using data protection law—particularly Article 2-terdecies of the Italian Data Protection Code—to validate heirs’ rights to access Apple iCloud accounts.
Akramov et al. (2024) broaden this perspective by maintaining that digitalization of inheritance law has to extend beyond the realm of legal theory to encompass cybersecurity, user conduct, and privacy engineering. They recommend “digital stewardship ethics” to be ingrained in law, cautioning that heirs may unknowingly infringe upon the privacy of both the dead and third parties if access is provided without information.
Frédéric Prost (2022) takes it one step further, suggesting blockchain-driven “digital death switches” and biometric e-wills that ensure digital asset control is implemented securely and independently, without the need for court intervention. His suggestion is a technical advancement in succession mechanisms.
This literature indicates an evident gap within the Indian context—not only is there a lack of legislative structure, but the courts have yet to craft a constitutional or privacy-grounded approach to digital succession. Indian law, unlike the GDPR or Digital Republic Acts, is silent on posthumous data and heirs’ rights, with no assignment of the responsibility to bereaved families and service providers.
In B2C2 Ltd. v. Quoine Pte Ltd., the Singapore International Commercial Court examined how to classify cryptocurrency in a breach of contract case. While the main issue was about mistakes in trading algorithms, the court (led by Thorley IJ) stated that cryptocurrencies have the key features of property under common law. They can be defined, identified, and transferred, and they last over time. This recognition is important for digital inheritance, as it lays the groundwork for viewing crypto holdings as part of someone’s estate. This case shows that courts can acknowledge digital property even without specific laws. It also positions Singapore as a regional leader in updating private law to match technological changes.
4. Case Law Analysis and Comparative Jurisprudence
A. Court of Milan (2021): Apple v. Heirs of Deceased User
In this historic Italian case, the Milan court determined that the family of a deceased individual had a right to gain access to his Apple iCloud account. The court prioritized the doctrine of “family interest” over Apple’s exclusive ToS, by referring to Article 2-terdecies of the Italian Data Protection Code.The case is seminal in establishing that data protection legislation may take precedence over private digital contracts after death.
B. Court of Bologna (2020): Heirs v. Apple
Comparable facts appeared before the Bologna court, which supported Milan’s argument. According to the court, heirs’ rights to digital content of emotional or patrimonial value need to be retained even if platform terms prohibit transferability. This was a significant jurisprudential turn toward inheritable digital dignity.
C. Germany – Facebook Case (BGH, 2018)
Germany’s Federal Court of Justice held that the deceased user’s Facebook messages may be inherited like letters or diaries. It overruled Facebook’s privacy argument, observing that privacy with death comes to an end and inheritance law prevails. This case was significant as it positioned social media content as estate property, which is yet to be realized in India.
D. United States – RUFADAA (2015)
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which was enacted in 47 states, requires digital service providers to provide fiduciary access to a decedent’s digital assets upon being mentioned in a will. It provides a two-tiered framework—”content data” (emails, messages) needs express consent, but “non-content data” (login times, metadata) may be given more easily.
5. Disputes with Terms of Service (ToS)
One of the largest challenges in digital inheritance nowadays comes from tech industry Terms of Service agreements (ToS) held by companies such as Apple, Google, and Meta. These typically include non-transfer clauses within the ToS stating a user’s account cannot be inherited or transferred, despite national succession regulations.
For instance, Apple’s iCloud Terms state that “no right of survivorship and that the accounts close at death. That implies that even though the family will have legal heirship according to the Indian Succession Act, they might not be granted access to vital documents or memories. Facebook, too, has a default policy of memorializing the deceased account, but grants full access or control only if a “Legacy Contact” has been named in advance.
This creates a doctrinal tension: while Indian inheritance law acknowledges the transfer of all immovable and movable property, tech platforms regard user accounts as licenses rather than property and hence take them out of the estate.
The courts of Italy and Germany have been adamant on this. In the Milan and Bologna verdicts, the courts held that contractual provisions cannot prevail over statutory rights of inheritance. The BGH in Germany held that messages on the internet were similar to letters and should be inherited like any other item that can be inherited.
As yet, no Indian court has passed judgment on this particular dispute. But with rising digital literacy and expanding crypto holdings in India, it is merely a question of time before another such case comes up. Previewing, Indian courts need to keep in mind that platform ToS are not sacrosanct, and any contractual provision that overcomes a statutory right must be held to be void under Section 23 of the Indian Contract Act, 1872.
Google’s “Inactive Account Manager,” Facebook’s “Legacy Contact,” and Apple’s “Digital Legacy” are some control measures, but are non-enforceable in Indian courts. Further, most platforms are erratic and block access by invoking ToS, particularly if the deceased had not chosen digital succession options.
6. Recommendations
A. Indian Legislative Reforms
Define Digital Assets under Succession Law: Modify the Indian Succession Act, 1925, and Hindu Succession Act, 1956, to include digital assets (such as crypto wallets, social media profiles, NFTs, data in the clouds) as property that can be inherited.
Add a Digital Wills Chapter: Add a new chapter to permit e-wills with Aadhaar-linked verification, timestamping, and secure storage of the hash. This will eliminate the uncertainty surrounding informal digital wills and WhatsApp directions, which have been held valid in NSW, Australia, and British Columbia, Canada.
Model Law after RUFADAA: India may embrace a model like the U.S. RUFADAA, which discriminates between content data (emails, messages) and non-content data (login records, timestamps). Executors can have limited access unless the deceased specifically refused.
Digital Succession Certificate: A digital succession certificate could be issued by courts, similar to a succession certificate for bank accounts. It would entitle heirs to approach platforms, assert access, and transfer ownership where legally relevant.
B. Platform Accountability and Regulation
Impose Legacy Option Mandate: Indian law must require technology firms doing business in India to provide users with an obligatory “legacy option” at the time of account creation, where they can choose who will have access to their account after death.
Establish a “Digital Executor” Function: Modify IT Rules, 2021, to mandate a function akin to “digital executor”—an individual authorized to administer online accounts, cancel subscriptions, and recover data after death.
Punish Failure to Cooperate by Platforms: If a site declines to obey an Indian court ruling allowing heirs to have access, the government needs to be given authority to sanction or block digital non-compliance, according to IT Act provisions and TRAI digital regulations.
C. Awareness and Education
Encourage Digital Estate Planning: The Ministry of Law & Justice may join hands with MeitY (Ministry of Electronics & IT) and initiate public awareness campaigns to persuade Indians to make digital succession plans in the same way as tangible property.
Model Clauses for Wills: Prepare and disseminate model digital succession clauses to be used in formal wills—something like: “I give my legal heirs permission to access and manage my digital accounts and assets, including but not limited to: Gmail, social media, crypto holdings, and cloud files.”
D. Policy Proposals: Institutional Approach in India
India lacks a specific administrative framework and laws to deal with digital succession. A “Digital Assets Succession Division” under the Department of Legal Affairs or the Ministry of Law & Justice would be one potential change. While this office’s mandate is specifically designed to handle digital legacies, it may operate similarly to the UK’s Office of the Public Guardian.
A central digital succession registry might be kept up to date by the organization, enabling people to name heirs or fiduciaries and register digital assets in a way that is accepted by the law. Through smart contract-enabled authorizations for cryptocurrency or cloud accounts and Aadhaar-verified claim procedures, this register might expedite access for legal heirs in circumstances of intestacy.
E. Judicial Training and Digital Sensitization
Digital asset arrangements are generally unknown to Indian judges, especially those in district courts. A lawsuit involving digital heritage may be regarded as a civil issue between private parties or handled no differently from a disagreement over a forgotten password. Modules on the legal aspects of virtual property, digital ownership, and the difficulties of cross-border enforcement should be included in judicial training programs run by the National Judicial Academy (Bhopal).
It is also necessary to raise awareness of the emotional and social significance of digital information in the courts. As with real diaries or family property, online picture albums, journals, or even private letters between family members hold significant value and need to be safeguarded with the same rigor.
7. Digital Inheritance and Women’s Rights
A commonly neglected facet of digital inheritance is its gender-related aspect. In numerous Indian homes, men frequently take charge of financial decisions and exclusively possess digital assets, including online banking logins, crypto wallets, or access to e-commerce accounts. After their passing, female heirs or widows might experience digital disenfranchisement, despite having legal rights to inherit the estate.
This issue intensifies in joint families or patriarchal structures, where gaps in digital knowledge can be used to prevent women from inheriting online assets. In contrast to physical property that requires court documentation, digital assets can be transferred quietly, concealed, or abandoned.
To tackle this issue, legal changes ought to require spousal joint ownership declarations for valuable digital assets, similar to marital property laws. Financial literacy initiatives should incorporate sections on digital estate planning for women, particularly in rural or semi-urban regions. Neglecting the digital gender gap will merely increase inheritance-based disparities in the future.
7. Conclusion
Digital inheritance is no longer a future issue—it is a contemporary legal void. With millions of Indians having digital assets, memories, and social identities online, the lack of statutory or judicial regulation causes unwarranted distress and uncertainty to families upon death. Courts elsewhere have already held that contractual conditions cannot prevail over inheritance law, and Indian law cannot be left behind.
The pressure is not merely economic—cryptocurrency can be lost overnight if access is eliminated—but also emotional and cultural. Family pictures, diaries, uncompleted books, business strategies, and intellectual property uploaded online are usually worth more than tangible things. It’s about upholding human dignity to safeguard these digital legacies.
Through platform regulation, legislative reform, and raising awareness, India can develop a forward-looking legal framework that strikes a balance between the deceased’s privacy, the rights of the heirs, and the obligations of technology platforms. It’s time Indian succession law came of age in the 21st century.
International experience shows that we cannot solve the issue of digital inheritance with legal reforms alone. A collaborative approach is necessary, involving technologists, legal scholars, platform designers, psychologists, and public administrators. For example, biometric succession tools and digital vaults need strong backend encryption. Judicial officers also require training to identify their validity. Likewise, platforms need incentives or requirements to include Indian succession frameworks in their user policies.
By fostering dialogue across different fields, India can avoid a disjointed approach and instead work towards a complete digital estate ecosystem. This ecosystem should balance privacy, legal access, family rights, and technical feasibility.
Digital inheritance law is not a trivial matter. Many people now own assets that are exclusively found in digital spaces due to the rise of decentralized technologies, online businesses, and remote wealth accumulation. Ignoring this change’s legal ramifications could result in widespread intellectual property loss, business operations disruption, and injustice for bereaved families. India’s legal system needs to take into account the realities of ownership in the twenty-first century if it hopes to become a digital leader. We all have a responsibility to protect digital legacies; it’s not just a legal issue.
8. References
- Gerald Cotten Dies With the Only Passwords to $190 Million of Customers’ Funds, CNN BUSINESS (Feb. 5, 2019), https://edition.cnn.com/2019/02/05/investing/gerald-cotten-quadrigacx-crypto/index.html.
- Luke Lee, Examining the Legal Status of Digital Assets as Property: A Comparative Analysis of Jurisdictional Approaches, arXiv preprint arXiv:2406.15391v1 (2024), https://arxiv.org/abs/2406.15391.
- Ilaria Maspes, Digital Inheritance, Right of the Heirs to Access to the Deceased User’s Account and Terms of Service of the Social Network, 8 ITALIAN L.J. 555 (2022).
- Akmaljon A. Akramov et al., The Impact of Digitalization in Inheritance Law, 4 QUBAHAN ACAD. J. 100 (2024), https://doi.org/10.48161/qaj.v4n3a863.
- Bundesgerichtshof [BGH] [Federal Court of Justice] July 12, 2018, III ZR 183/17 (Ger.).
- B2C2 Ltd. v. Quoine Pte Ltd., [2019] SGHC(I) 03 (Sing. Int’l Comm. Ct.).
- Regulation (EU) 2016/679 of the European Parliament and of the Council (General Data Protection Regulation), art. 1–99, 2016 O.J. (L 119) 1.
- Revised Uniform Fiduciary Access to Digital Assets Act (2015), NAT’L CONF. OF COMM’RS ON UNIF. STATE L.,
- Cristina Carata, Inheritance of Digital Assets Under the French Civil Code: A New Property Frontier, 45 REVUE INTERNATIONALE DE DROIT COMPARÉ 312 (2021).
- Wills, Estates and Succession Amendment Act, 2020, S.B.C. ch. 3 (Can.), https://www.bclaws.gov.bc.ca/civix/document/id/bills/billsprevious/4th41st:gov03-1.
- Frédéric Prost, Blockchain-Based Smart Contracts for Digital Inheritance: Legal and Technical Challenges, 11 INT’L J. OF LAW & TECH. 114 (2022).
- Meta Platforms Inc., Terms of Service, META (last updated Apr. 2024), https://www.facebook.com/terms.
- Information Technology Act, No. 21 of 2000, INDIA CODE, https://www.indiacode.nic.in/bitstream/123456789/1999/1/A2000-21.pdf.
- Cyber Saathi, Why Your Digital Legacy Needs a Legal Backup, CYBERSAATHI.ORG (Jan. 2023), https://cybersaathi.org/digital-inheritance-rights/.
Submitted by:
Arpit Azad,
Rajiv Gandhi National University Of Law.
Patiala, Punjab