Digital Inheritance Law in Mexico: Your Digital Will

Introduction:

In today’s digital age, where online presence has become an integral extension of our identity, there emerges the need to address the management of our digital assets after death. Digital inheritance law, an emerging sub-branch of traditional inheritance law, is responsible for regulating the transmission of a deceased person’s digital assets and goods to their heirs and legatees. This field encompasses everything from social media accounts and online content to software licenses and other assets stored on digital platforms. As digitization continues to permeate our lives, it becomes essential to be informed about how to manage, protect, and transmit our digital legacy. This area of law also faces unique legal and ethical challenges, especially in relation to privacy protection and the preservation of a person’s digital legacy.

Keywords: Digital inheritance law, Digital assets, Digital goods, Digital legacy, Digital will, Testamentary executor, Inactive account administrator, Memorial profile, Personal data protection, Digital footprint, Digital identity.

Digital inheritance law

Digital inheritance law is a sub-branch of inheritance law that regulates the transmission of a deceased person’s digital assets and goods to their heirs and legatees. These digital assets and goods include social media accounts, online content, digital properties, and other information stored on electronic platforms. This branch of law also addresses the rights and obligations between the parties involved in the digital realm, ensuring the protection of privacy and the integrity of the deceased’s digital legacy.

In a world where digitization has permeated every aspect of our lives, an unavoidable question arises: what happens to our digital presence when we are no longer around? Digital legacy, a term that has gained relevance in recent years, addresses this very question.

In the words of the Commissioner of the Institute of Transparency, Access to Public Information, and Personal Data Protection of the State of Mexico and Municipalities, Javier Martínez Cruz, “The digital legacy is a legal instrument that seeks to protect and guarantee the certainty of the population regarding their personal data, both in the physical and digital world”[1]. But, what exactly does this legacy comprise?

According to the IONOS company website, “Digital legacy is defined as the set of electronic data that an individual leaves on their hard drive or on the Internet when they die”[2]. This includes everything from social media profiles, email accounts, to software licenses and details on work platforms.

The legal landscape in Mexico presents particular challenges. Both the federal and state Civil Codes state that a will can address the disposition of the testator’s assets and rights after their death. Under this logic, the information from electronic accounts on social media and other digital media is also considered part of the citizen’s estate[3].

The recognition of the internet as a human right by the UN Human Rights Council in 2012, and its subsequent acknowledgment in Mexico in 2013, has reinforced the significance of digital inheritance[3]. The digital footprint, encompassing all personal information on the web, shapes an individual’s digital identity, and thus, it’s crucial to control, monitor, and set boundaries to its access.

In 2021, the Civil Code of Mexico City was amended to include provisions related to the digital will[4]. This reform acknowledges the importance of safeguarding and bequeathing digital assets or rights and offers the opportunity to conduct the procedure online. It’s vital for individuals to be informed about how to create a digital will and the implications it entails.

A significant advancement in protecting the rights of people with disabilities in Mexico occurred in August 2023 when the Supreme Court of Justice of the Nation (SCJN) declared unconstitutional a reform to the Civil Code for the Federal District that prevented individuals with visual, auditory, and speech disabilities from executing electronic wills[5]. This decision underscores the importance of ensuring equal rights and opportunities for everyone, regardless of their abilities.

The digital will, as described by the RAZÓN portal, is a legal instrument that ensures personal data, passwords, social media profiles, email accounts, e-commerce transactions, among others, are entrusted to reliable hands[6]. It’s a tool that guarantees an individual’s digital affairs are handled according to their wishes after their demise. The process to facilitate a digital will involves gathering digital possessions, deciding on the content’s fate, selecting an executor, documenting the will, and legalizing the testament before a notary[6].

Another aspect to consider is the tool provided by Gmail, named “Inactive Account Manager.” This tool allows users to share certain account data or notify others after a specific period of inactivity[7]. It’s a safety measure aiming to protect user information in case they can’t access their account for an extended period, specifically upon passing away, thus ensuring their digital legacy on this platform is managed according to their wishes.

Another significant aspect in the realm of digital inheritance is the post-mortem management of social media accounts, particularly Facebook. The platform provides specific options for users to determine their profiles’ fate after their passing[8]. One of these options is designating a “legacy contact,” who will handle the deceased’s memorial profile.

These memorial profiles serve as a space for friends and family to share memories and tributes to the loved one. It’s important to note that, unlike a regular account, memorial profiles have specific restrictions: they can’t be accessed to log in, don’t appear in friend suggestions or reminders, and their previously shared content remains visible according to the deceased’s privacy settings.

Furthermore, Facebook provides the option to permanently delete the account upon the user’s passing, thereby erasing every digital trace of the individual on the platform. This decision must be made and configured by the user while alive.

It is essential that users are informed about these options and make informed decisions regarding the fate of their digital legacy on Facebook, as these decisions carry significant implications in how they will be remembered in the digital realm and how their memory will be preserved for future generations.

Another aspect to consider in the realm of digital inheritance is the post-mortem management of accounts on microblogging platforms, specifically on X (formerly known as Twitter). The X platform has clear policies regarding the passing of a user[9]. Unlike other social networks, X does not allow access to the deceased’s account under any circumstances, thus safeguarding the user’s privacy and information integrity. However, it does offer the option to deactivate the deceased’s account upon request from an authorized representative or direct relative, provided the submission of documents that verify the relationship and the death.

This policy underscores the importance of safeguarding digital privacy even after death, and emphasizes the need for users to be informed and make knowledgeable choices about the fate of their digital legacy on X.

Conclusion

The digital age has transformed not only how we live but also how we contemplate our legacy after passing away. Digital succession rights emerge in response to the growing need to regulate and protect an individual’s digital assets and properties, ensuring that their online presence is managed according to their wishes while respecting their privacy. Accounts on social networks, emails, online content, and other digital properties are an integral part of this legacy, and their proper management is crucial for preserving the deceased’s digital memory and identity.

In Mexico, the legal landscape has evolved to acknowledge and protect digital inheritance. Revisions to the Civil Code and decisions from the Supreme Court of Justice of the Nation reflect a commitment to safeguarding the digital rights of its citizens. Additionally, tools like Gmail’s “Inactive Account Manager” and post-mortem management options on platforms like Facebook and X (formerly Twitter) provide users mechanisms to determine their digital legacy’s destiny, ensuring that their online footprint is handled with respect and dignity.

Lastly, it’s vital for society to be informed and aware of the significance of digital inheritance. Digitalization has permeated every facet of our lives, and it’s our responsibility to ensure our digital legacy is managed appropriately. The choices we make today about our online presence will have a lasting impact on how we’re remembered in the future, making it essential to be knowledgeable and make informed decisions about our legacy in the digital world.

References:

• [1] Infoem, “Herencia digital: Instrumento que brinda certeza jurídica en el mundo físico y digital,” n.d., https://www.infoem.org.mx/es/contenido/noticias/herencia-digital-instrumento-que-brinda-certeza-jur%C3%ADdica-en-el-mundo-f%C3%ADsico-y.
• [2] IONOS, “La herencia digital: gestionar nuestro legado en la red,” n.d., https://www.ionos.mx/digitalguide/paginas-web/derecho-digital/la-herencia-digital/.
• [3] A.A. Fabre & M.L. Hernández Sánchez, “Testamento y herencia digital,” Ejempla Journal, no. 04 (2021), https://doi.org/10.25009/ej.v0i04.2574.
• [4] El Informador, “¿Qué es y cómo hacer un testamento digital?,” 2021, https://www.informador.mx/mexico/Que-es-y-como-hacer-un-testamento-digital-20230820-0072.html.
• [5] I. Ramírez, “La SCJN invalida norma que impedía a personas con discapacidad realizar testamentos electrónicos,” Animal Político, 2023, https://www.animalpolitico.com/sociedad/corte-freno-ley-testamentos-personas-discapacidad.
• [6] RAZÓN, “¿Qué es el testamento digital y cómo lo puedo tramitar?,” n.d., https://www.razon.com.mx/mexico/que-es-el-testamento-digital-y-como-lo-puedo-tramitar-541955.
• [7] Google, “Acerca del Administrador de cuentas inactivas de Gmail,” n.d., https://support.google.com/accounts/answer/3036546?hl=es-419#:~:text=El%20Administrador%20de%20cuentas%20inactivas,y%20haz%20clic%20en%20Iniciar.
• [8] Facebook, “¿Qué pasa con tu cuenta de Facebook si falleces?,” n.d., https://es-la.facebook.com/help/103897939701143.
  X (anteriormente Twitter), “Fallecimiento de un usuario de X,” n.d., https://help.twitter.com/es/rules-and-policies/contact-x-about-a-deceased-family-members-account.