iphone photoUnbeknownst to most software users, many of the world’s largest software companies have relatively complicated software license terms in the event of a user’s death. This can present an emotional and unnecessary complication at a loved one’s passing.

An illustrative and all too commonplace example of this can be found in the terms and conditions of Apple’s iCloud platform. One section of the terms of service of Apple’s iCloud software (as of the publication date) entitled “No Right of Survivorship” which provides that:

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at https://support.apple.com/icloud for further assistance.”

In other words, Apple has a right to terminate an iCloud account and delete all the data stored in that account upon a user’s death. Many companies structure software licenses in this manner in order to avoid potential contractual liability in the event of a dispute over access to a deceased user’s account.

Legal Rights to Access Digital Content

Notwithstanding the above, many software companies – while not contractually obligated to provide access to a deceased user’s account – have a general policy of allowing such access if a family member of a deceased user can:

  • verify the user’s death; and
  • establish a legal right to access the digital content in question.

While verifying a user’s death usually requires only showing a death certificate, establishing a legal right to access content is often more difficult. Continuing with the iCloud example from above, Apple’s technical support page explains that:

Before Apple can provide assistance in accessing a deceased person’s device or the personal information they stored in iCloud, we ask that the person’s next of kin obtain a court order that names them as the rightful inheritor of their loved one’s personal information.”

Apple’s technical support page further warns of the importance of the physical and electronic access issues noted above; noting:

We have great sympathy for surviving family members. Once the court order is received, we will help as much as possible to grant access to the personal information or devices you are requesting. Please note that devices locked with a passcode are protected by passcode encryption, and unless the next of kin knows the device passcode, Apple will not be able to remove the passcode lock on the device without erasing it.” (Emphasis added).

Finally, Apple’s technical support page reminds users of the need for digital intellectual property estate planning – advising that:

We encourage customers to add an inheritance plan to their will that covers the personal information they store on their devices and in iCloud. This may simplify the process of acquiring a proper court order and reduce delay and frustration for family members during a difficult time.”

Clearly, the importance of this topic is highlighted by the fact that such major tech companies warn customers to notify next of kin about device passwords and “encourage customers to add an inheritance plan to their will” covering digital content.

While estate planning has traditionally focused on financial assets (such as cash, stocks and bonds) and tangible assets (such as real estate and personal property), the disposition of digital intellectual property is a subject which should be considered by everyone during end-of-life planning.

Those needing assistance in this regard may contact me at luca.hickman@henlaw.com or by phone at 239-344-1307.