Digital inheritance: the battle between money and privacy—how should the law position itself?

By: Xiao Suo’s Legal Team

From online wallet balances, electronic insurance wealth management, game equipment, and other “traditional virtual assets,” to cryptocurrencies, NFTs, and other “emerging virtual assets,” wealth is increasingly being possessed, used, and disposed of by us in a “non-physical” way. And when life reaches its end, what will become of these digital assets stored in the cloud or on devices? Can they be inherited? And how would they be inherited? Or, going one step further, for some “mysterious learning materials” placed in hidden cloud drive folders, does the deceased want the heirs to inherit them?

Today, Sister Suo’s team will talk with everyone about this “new inheritance” issue in the digital age.

I. The Concept of Digital Inheritance

Before discussing inheritance, we must first clarify what “digital inheritance” means. From the perspective of legal practice, it is not a strict legal term. Instead, it is a general umbrella term for all kinds of data and rights existing in digital form, with property value or personal attributes, that are left behind after the death of a natural person.

From a relatively general but easy-to-understand viewpoint, Sister Suo’s team believes that “digital inheritance” can roughly be divided into two categories: “digital inheritance” mainly focused on economic value, and “digital inheritance” mainly focused on personality attributes and emotional value.

(A) Digital inheritance mainly focused on economic value

The core feature of this kind of digital inheritance is that it has clear and measurable economic value. This attribute, in essence, aligns with the concept of traditional “virtual property.” The value of this kind of digital inheritance is often directly tradable through legal tender, or its market value can be objectively measured using money as the standard; in some cases, it is even the electronic form of legal tender itself.

Common types generally include the following:

(B) Digital inheritance mainly focused on personality attributes and emotional value

These assets are, in form, often not money or equivalents, but they carry the deceased’s dignity, emotional bonds, and deep social connections. At the same time, they also concentrate precious memories and emotional sustenance for family inheritance. For heirs, the spiritual meaning contained in these assets goes beyond material value, providing unique and irreplaceable emotional comfort and a function of cultural continuity.

Distinguishing between the two categories of digital inheritance is crucial, because their legal nature, the difficulty of inheritance, and the focus of protection are all different. Digital inheritance mainly focused on economic value is closer to the concept of traditional “property,” while digital inheritance mainly focused on personality attributes and emotional value cannot be simply and roughly treated as mere “property.” Its “inheritance” more often involves balancing personal information protection, privacy rights, and inheritance rights.

II. The Legal Nature of Digital Inheritance and the Legal Basis for Inheritance

Can digital inheritance be inherited as an estate? The answer is yes, but the path is not straightforward. China’s current laws do not provide a special definition for “digital inheritance,” but the legal basis for its inheritance is scattered across principle-based provisions in multiple laws and regulations. For digital inheritance mainly focused on economic value, there are already many precedents in judicial practice; successful inheritance is generally not a big issue and there are basically no legal obstacles. However, for digital inheritance mainly focused on personality attributes and emotional value, it is quite controversial: the inheritance of some “digital inheritance” may infringe on the deceased’s personality dignity, personal privacy, and social reputation, and must be handled with care.

Pursuant to Article 1,122 of the Civil Code, an estate is the personal lawful property left behind when a natural person dies. The key to determining whether digital inheritance belongs to “lawful property” lies in whether it has “property attributes.” For the first category of virtual property mentioned above, which has direct economic value, its property attributes are self-evident. Digital assets that users recharge with real money, buy, or create by investing time and intellectual labor and that generate economic benefits should be regarded as part of the user’s personal lawful property. Article 127 of the Civil Code explicitly states: “If the law provides for protection of data and network virtual property, protection shall be carried out in accordance with those provisions.” This provides an higher-level legal basis for the property-right attribute of network virtual property. But for digital inheritance mainly focused on personality attributes and emotional value, there is more controversy in practice. At present, there is no clear and referenceable precedent; only a case that can be used for analogy—regarding a dispute over a former employee and a company’s usage rights to a social media account—can be referred to.

Sister Suo’s team believes that platform rules in this area may potentially conflict with the inheritance rights to property protected by the Civil Code. When a user obtains virtual property by paying consideration, or when intellectual labor endows an account with property value, the value portion should belong to the user’s property interests. A clause in a platform agreement that completely prohibits inheritance may be recognized as an invalid standard-form clause, because it may exclude the user’s main rights and increase the user’s responsibilities. However, in practice, even if heirs directly challenge the platform agreement based on the Civil Code, they still face difficulties such as high litigation costs and a long time period. Therefore, how to communicate with the platform and how to present and prove evidence become key in implementing inheritance matters.

III. Key Points for Practical Digital Inheritance

(A) Fixing evidence: the cornerstone of inheritance rights

The key to a lawsuit is a complete chain of evidence, and inheritance of digital inheritance is no exception. When heirs discover relevant asset clues, the primary task is to comprehensively and lawfully fix the evidence.

(B) Make good use of notarization and blockchain evidence-preservation tools

Notarization plays an indispensable role in inheriting digital inheritance. Pursuant to Article 11 of the Notarization Law, inheritance and preservation of evidence both fall within the statutory business scope of notarization institutions. For some evidence that is inconvenient to notarize or has a risk of being quickly lost, it may be considered to use blockchain evidence-preservation tools for evidence preservation.

Notarization is the most commonly used method. Heirs can apply to a notary office to conduct on-site notarization of the entire process of operating the deceased’s device, logging into the relevant accounts, and viewing the contents of the assets, and produce a notarization certificate. For virtual property with clear ownership and definite value (such as an Alipay balance), when the materials are complete, you can try to apply to the notary office to handle notarization of inheritance rights. With the notarization certificate, you can request the platform to assist with the transfer of assets. But in practice, many notary offices take a cautious attitude toward notarization of virtual property inheritance due to the lack of clear operational guidance.

Blockchain evidence-preservation is also gradually being applied and gaining popularity in judicial litigation. Its core value lies in using distributed ledger technology to provide electronic data with tamper-proof and traceable timestamp proof. In scenarios of digital inheritance, heirs can upload key evidence—such as account login records, screenshots of asset balances, communication records with the platform customer service, and chat records created by the deceased before death regarding disposition of property—to a compliant blockchain evidence-preservation platform.

Sister Suo’s team specifically reminds that blockchain evidence-preservation is not a replacement for notarization; it is a complementary relationship. According to the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by Internet Courts,” when the electronic data submitted by the parties is stored as evidence through blockchain and other technological methods, and can prove its authenticity, the internet court should confirm it. But in traditional litigation procedures, blockchain evidence-preservation evidence still needs to go through the evidence examination process; its strength depends on the qualifications of the evidence-preservation platform, the standardization of the evidence-preservation process, and the degree to which it can be corroborated with other evidence. Therefore, for virtual property with relatively high value or where ownership is disputed, it is recommended to prioritize notarization to fix the evidence. For electronic traces that are highly time-sensitive and need to be fixed immediately, you can first do blockchain evidence-preservation, and then supplement with notarization or apply for judicial appraisal later depending on circumstances.

© Communication and litigation: two possible paths

For digital inheritance mainly focused on economic value, it can be resolved through negotiation plus litigation.

During negotiation, you can bring a death certificate, proof of the relationship, proof of the heir’s identity, and the evidence that has already been fixed, and then formally contact the platform’s customer service or legal department to make an inheritance request. Clearly and explicitly state the inheritance demands. If an account and the virtual property cannot be separated, inheritance of the account can actually be achieved by claiming inheritance rights to the virtual assets within the account that have clear economic value (such as balances and virtual goods). Some platforms (such as certain payment institutions), after verifying the information, already have relatively mature internal procedures for handling balance inheritance.

If negotiation fails, the dispute can be resolved through litigation. This involves selecting the court with jurisdiction. Pursuant to Article 34 of the Civil Procedure Law, lawsuits filed due to disputes over inherited estates shall be under the jurisdiction of the people’s court at the domicile of the decedent at the time of death or the people’s court where the primary location of the inherited estate is. For digital inheritance, there is controversy as to how its “location” should be determined. Typically, you can take as the jurisdictional connecting point the court at the decedent’s domicile or the court where the defendant (that is, the online service platform)’s main place of business is located.

As for digital inheritance mainly focused on personality attributes and emotional value—such as photos, diaries, and chat records on social media—the purpose of inheritance is more about preserving emotions and memories. At present, this type of claim lacks a strong basis for a coercive legal request and clear reference precedents, and relies more on platform user policies and a sense of social responsibility.

Sister Suo’s team suggests that you should first try to directly access and download backups using the account password. If access is not possible, you can appeal to the network service provider, provide the death certificate, proof of the relationship, proof of the heir’s identity, and the evidence that has already been fixed, and emphasize that it is an important record of personal emotions and does not involve commercial use—then request the platform to provide a copy of the data based on humanitarian considerations or data export rights.

Written at the end

Digital inheritance is a typical area where the law lags behind technological development. At present, heirs often have to spend time and effort costs far higher than those needed to inherit traditional estates. Sister Suo’s team advises partners, when the time is right, to prepare a personal list of digital assets, including accounts, platforms, approximate values or descriptions of content, and to inform a trusted family member of where the list is stored. At the same time, also make reasonable arrangements by means of a will. When drafting the will, you may consider clearly writing down important and valuable digital assets (especially wallet keys for encrypted assets, and account passwords for self-media accounts that generate income), as well as your intentions regarding their handling. Although execution may still face obstacles, this is undoubtedly the best way to express your clear intentions to both the heirs and the court.

Finally, inheritance issues related to cryptocurrencies are extremely complex. Due to space constraints, Sister Suo’s team will in the future provide a detailed explanation in a dedicated article, combining real case examples for everyone to understand in depth. That is all for today’s sharing—thank you to the readers.