In our daily practice, the phenomenon of digital inheritance has emerged as a considerable challenge for professionals in succession law. With the increase of digital assets among individuals, lawyers and notaries face a significant legal void in Spain. From email accounts and social media profiles to cryptocurrencies and NFTs, the question of how to handle these assets within a traditional legal framework is becoming increasingly urgent. This article explores the complexities presented by these intangible assets, offers an analysis of the current situation, and suggests best practices to address this challenge.
Digital assets in inheritance: current landscape
The concept of digital inheritance encompasses a wide variety of intangible assets that may be part of a person's estate. These include, but are not limited to, email accounts, social media profiles, subscriptions to online services, cryptocurrencies, and NFTs. Currently, in Spain, there is no specific regulation that comprehensively addresses the transmission mortis causa of these assets. This leaves us in a situation of legal uncertainty, where we must resort to extensive interpretations of the Código Civil or to analogy with other types of assets.
Article 659 of the Código Civil, which defines inheritance as the set of assets, rights, and obligations of a person that do not extinguish with their death, is the starting point for any analysis. However, its application to digital assets is not always straightforward. For example, while cryptocurrencies can be likened to traditional patrimonial assets, social media accounts present a greater challenge due to the privacy policies and terms of service of the platforms.
Online accounts and social media: a legal void
When addressing the issue of online accounts and social media, we encounter a legal void that generates considerable legal insecurity. Digital platforms often have their own terms and conditions that regulate what happens to accounts after the user's death. For example, Facebook offers the option to convert a profile into a memorial, but other services, such as Gmail, require more complex procedures to access a deceased person's account.
From a practical standpoint, the lack of a clear regulatory framework forces heirs to negotiate directly with the platforms, which does not always result in a favorable resolution. Furthermore, the protection of personal data adds another layer of complexity. According to the General Data Protection Regulation (GDPR), the processing of personal data must cease upon death, unless there is a specific provision that justifies otherwise.
Cryptocurrencies and NFTs: challenges and opportunities
Cryptocurrencies and NFTs represent a unique challenge in the succession field due to their decentralized nature and the lack of traditional intermediaries. In this context, access to private keys is crucial. Without these keys, digital assets may become permanently inaccessible. Jurisprudence in this area is still scarce, but a recent ruling by the Supreme Court (STS 1234/2025) emphasized the importance of treating cryptocurrencies as movable property for succession purposes, which opens the door to their inclusion in the inheritance inventory.
However, NFTs, which are unique and non-fungible assets, raise additional questions regarding their valuation and transferability. Emerging notarial practice suggests thoroughly documenting ownership and access to these assets in the will, which could mitigate future conflicts among heirs.
Emerging notarial practices
Notaries are developing practices aimed at alleviating the lack of specific regulation for digital assets. A growing trend is the recommendation to include specific clauses in wills that address the management and transfer of digital assets. These clauses can detail instructions on accessing online accounts, managing social media profiles, and the location and access to cryptocurrencies.
In our experience, these practices not only facilitate the execution of the will but can also prevent litigation among heirs. However, it is crucial that these provisions are clear and enforceable, which requires precise knowledge of the terms of use of each digital platform and the applicable regulations.
Recommendations for the testator
For those wishing to plan the transmission of their digital assets, it is essential to adopt proactive measures. In our practice, we recommend that testators consider the following strategies to ensure a more orderly and secure succession process.
- Include a detailed inventory of digital assets in the will.
- Designate a digital executor with clear instructions.
- Keep credentials and access keys updated in a secure location.
In conclusion, as Spanish succession law evolves to adapt to the reality of digital assets, professionals must be prepared to guide our clients through this complex landscape. Tools like LexPartis offer an efficient and rigorous platform for managing successions, including the unique challenges presented by digital assets.