Re: Who Gets to See the E-mail of the Deceased?

by Susan Llewelyn Leach Staff writer of The Christian Science Monitor
> It's an old story with a heart breaking twist. A young marine is > killed in the line of duty in Iraq and his parents, in their sorrow, > request all his belongings, including his correspondence -- in this > case, his e-mail.

The e-mail should be treated no differently than any other personal belongings and they revert to the next of kin or recipients specified in a will.

This really should be a no-brainer, and the parents should not have had to go court to get what was rightfully theirs.

There is nothing special about e-mail that make them any different than any other very personal belongings, such as a diary or account statements. All of these pass on to an estate via the executor or next of kim.

Some critics complained that email might contain embarassing information. That is not an excuse because (1) legal protection against "embarassment" ceases when one dies and (2) diaries, bank account statements, etc., might also contain just as much embarassing information.

Just because e-mail is intangible is irrelevent. Money is bank accounts is intangible too--just bits on a computer--until the bank releases it and converts it into cash.

In the event there is any legally confidential material in an email account, the estate executor would be responsible to care for it just as he would any confidential documents found within an estate.

Senders of sensitive information by email have often been told that email is not private and to be cautious.

The Internet company refuses to give out the marine's password, saying > that would violate its privacy rules.

To do that the Internet company would have to have explicitly had a contract clause stating it would destroy all stored email upon the death of a subscriber in all cases. However, I'm not sure such a clause would be legal since it might interfere with estate law. Someone's will may have to contain a directive "in the event of my death destroy the following..." (as many wills do contain).

Quoting Christian Science Monitor report again:

And how much access should relatives have to a record of the > thoughts of a loved one who has passed away, especially ones that can > be as extensive, intimate, -- and even embarrassing -- as in e-mail?

That is utterly irrelevent. It's the same risk as paper. Unfortunately, during wartime many loved ones did find out painfully things that their family was doing that were very hurtful through the discovery of letters.

"We thought we had absolute privacy and now we have learned that > after our death, a family member could possibly wrangle access to > [our] personal space," one blogger lamented on drudge.com.

"Absolute privacy" doesn't exist in the on-line world unless someone makes special arrangements for it to be there.

"If the soldier had wanted his family to read his e-mail, then he > would have CC'd or BCC'd them," another wrote.

It doesn't work that well. Your personal effects automatically revert to your family or estate unless you explicitly give instructions otherwise. This is the way it always worked.

The executor of an estate is duty bound to ascertain all assets and personal property of a deceased and distribute per the will. Accordingly, the executor needs access to anything and everything belonging to the deceased. If no executor was appointed, that would to next of kin with the same rights of access.

The legal solution, Professor Perritt says, is to write a will and > bequeath the e-mail to a trustee who is instructed to destroy > it. "That would leave no doubt in the service provider's mind about > what's supposed to happen," he says, "and it would keep it away from > your family."

That is correct and the only way to do it. And that not only applies to email but other personal effects as well. If you have letters from an old (or current) lover you want kept secret, or a collection of certain magazines you're embarassed about, you must make advance arrangements for their prompt destruction in the case of your death or severe disability.

The lesson here is (1) have a will which covers your personal papers and (2) never put anything in an email you don't want the entire world to know about. There's far too much risk of release.