Digitalization has transformed the way we manage our assets, and succession law is no exception to this evolution. In our daily practice, we increasingly encounter cases where digital assets, from social media accounts to cryptocurrencies, must be considered in the distribution of inheritances. However, the lack of specific regulation within the Spanish legal framework poses significant challenges for legal professionals. In this article, we will analyze the treatment of these digital assets, exploring existing legal gaps and the notarial practices that have begun to emerge in response.
The legal void in the inheritance of digital assets
Despite the growing importance of digital assets, the Spanish Civil Code does not provide a clear framework for their inclusion in inheritances. The current regulations do not specifically address how email accounts, social media profiles, or digital subscriptions should be handled after the death of their owner. This lack creates uncertainty for both heirs and the professionals responsible for managing the succession process.
Cryptocurrencies, for their part, pose additional challenges due to their decentralized and anonymous nature. Without specific regulation, heirs may face the impossibility of accessing these assets if they do not have the necessary private keys. Jurisprudence, to date, has been reluctant to fill this void, leaving the doctrine to debate the best way to integrate these assets into the hereditary estate.
Online accounts and social media: beyond access
Online accounts and social media profiles are aspects of digital identity that often require delicate handling in the succession context. In practice, we have seen how digital service providers have disparate policies regarding post-mortem access, complicating the unified management of these assets. While some allow the transfer or closure of accounts under certain conditions, others lack clear procedures for heirs.
The lack of coordination between digital platforms and the Spanish legal framework leaves a gray area that notaries and lawyers must navigate with caution. Emerging notarial practice suggests including specific instructions in wills regarding the treatment of these assets, although the effectiveness of such provisions depends on the willingness of the platforms to cooperate.
Cryptocurrencies and NFTs: challenges and opportunities
Cryptocurrencies and non-fungible tokens (NFTs) represent new types of digital assets that require special attention in the succession context. The main difficulty lies in accessing and transferring these assets, which depend exclusively on private keys and passwords, without which heirs cannot claim ownership.
From a legal standpoint, the DGT has issued binding consultations that, although they do not provide exhaustive regulation, recognize the existence of these assets in the estate of the deceased. However, the lack of specific regulations remains an obstacle to their proper inclusion and valuation in the hereditary inventory, which could lead to disputes among heirs, especially when these assets hold significant value.
Practical aspects and frequent litigations
In our experience, one of the most litigated aspects in the inheritance of digital assets is the identification and valuation of these goods. The absence of public records for many of these assets complicates their location, which can result in disputes among heirs regarding their existence and value. Additionally, the volatility of the cryptocurrency market adds a layer of complexity to determining their value at the time of inheritance.
Spanish courts have begun to receive cases related to the inheritance of cryptocurrencies, although decisions so far have not created a unified body of jurisprudence. The Supreme Court ruling of 2024, for example, addressed the issue of including cryptocurrencies in the hereditary inventory, highlighting the need for clear evidence regarding ownership and access to these assets.
- Include specific instructions regarding digital assets in the will.
- Maintain a secure record of cryptocurrency keys and passwords.
- Consider using custody services to ensure post-mortem access.
In conclusion, the management of digital assets in the succession context represents a growing challenge that requires both regulatory updates and innovative practices from professionals. Tools like LexPartis can be of great assistance in managing these processes with greater rigor and efficiency, allowing lawyers and notaries to adapt their services to the needs of the 21st century.