Delaware Code Title 12 Sec. 5004 – Control of digital accounts and digital assets by a fiduciary
(a) Except as otherwise provided by a governing instrument or court order, a fiduciary may exercise control over any and all rights in digital assets and digital accounts of an account holder, to the extent permitted under applicable state or federal law, including copyright law, or regulations or any end user license agreement.
Terms Used In Delaware Code Title 12 Sec. 5004
- Account holder: means a decedent, a disabled person pursuant to Chapter 39 of this title, a principal of a durable personal power of attorney pursuant to Chapter 49A of this title, a settlor of a trust which was revocable until the time of the settlor's death or incapacity, or a trust, whether or not revocable, that invokes this chapter. See Delaware Code Title 12 Sec. 5002
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Court: means the Court of Chancery for the State. See Delaware Code Title 12 Sec. 5002
- Digital account: means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying, or processing information which provides access to a digital asset which currently exist or may exist as technology develops or such comparable items as technology develops, stored on any type of digital device, regardless of the ownership of the digital device upon which the digital asset is stored, including but not in any way limited to, email accounts, social network accounts, social media accounts, file sharing accounts, health insurance accounts, health-care accounts, financial management accounts, domain registration accounts, domain name service accounts, web hosting accounts, tax preparation service accounts, online store accounts and affiliate programs thereto, and other online accounts which currently exist or may exist as technology develops or such comparable items as technology develops. See Delaware Code Title 12 Sec. 5002
- Digital asset: means data, text, emails, documents, audio, video, images, sounds, social media content, social networking content, codes, health care records, health insurance records, computer source codes, computer programs, software, software licenses, databases, or the like, including the usernames and passwords, created, generated, sent, communicated, shared, received, or stored by electronic means on a digital device. See Delaware Code Title 12 Sec. 5002
- End user license agreement: means an agreement between an account holder and a custodian establishing the rights and responsibilities of each. See Delaware Code Title 12 Sec. 5002
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: includes a personal representative appointed by the Register of Wills, a guardian appointed pursuant to Chapter 39 of this title, an agent under a durable personal power of attorney pursuant to Chapter 49A of this title, a trustee, or an adviser pursuant to § 3313 of this title. See Delaware Code Title 12 Sec. 5002
- Governing instrument: means a will, trust, a durable personal power of attorney pursuant to Chapter 49 or Chapter 49A of this title, order appointing a guardian over the property of the account holder, or other dispositive, appointive, or nominative instrument of any similar type. See Delaware Code Title 12 Sec. 5002
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States. See Delaware Code Title 12 Sec. 39A-101
(b) If a provision in an end user license agreement limits a fiduciary‘s access to or control over a digital asset or digital account of an account holder, the provision is void as against the strong public policy of this State, unless the account holder has agreed to the provision by an affirmative act separate from the account holder’s assent to other provisions of the end user license agreement.
(c) A choice-of-law provision in an end user license agreement is unenforceable against a fiduciary action under this chapter to the extent the provision designates law that enforces or would enforce a limitation on a fiduciary’s access to or control over digital assets or digital accounts that is void under subsection (b) of this section.