Minors and Digital Asset Succession

Abstract

Minors who die in the United States hold a property interest in an asset that did not exist when the law established eighteen as the age of legal capacity to devise. These assets are digital assets: email, social networking, documents, photos, text messages, and other forms of digital media. Minors use these assets with a fluidity and ease unrivaled by older generations. Under the current law, minors have no right to decide what happens to their digital property at death. Despite the fact that minors have the capacity to contract with online businesses, make health care decisions, marry, have sex, and seek employment, minors are denied one of the most basic rights of property ownership — the right to devise. This Article is the first to explore how minor capacity law should change to accommodate the changing nature of property and grant minors the right to devise their digital assets. It explores historical capacity standards imposed upon minors in order to own and use property and argues that these standards are no longer adequate to regulate digital assets. It demonstrates how applying succession law instead of an arbitrary age requirement safeguards minors interests, protects property and privacy rights, and promotes the freedom of succession. This Article argues that granting minors the ability to devise digital assets is a logical evolution of minor capacity standards seen in other areas of the law. It has been forty years since we have considered the age of legal capacity to devise property and with the proliferation of digital assets, the time is ripe for a reassessment of minors’ capacity to devise digital property.