Heritage in the digital world

The world population is increasingly inserted in a technological context, in which many of the operations and activities previously carried out exclusively in person, are now carried out online.

Following the packaging of these changes and reforms, several cryptoassets (virtual currencies) were created, the most famous of which is Bitcoin, which is already used in various business operations, and it should be noted that, in 2021, the Government of El Salvador approved a law making said currency official in the country, along with the US dollar, and in April 2022, the Central African Republic, in the same sense, also adopted Bitcoin as legal tender alongside the CFA Franc.

In addition to crypto assets, there are several other digital assets that have a financial value. As an example, one cites the air miles, ebooks (digital books) and social networks of digital influencers, with millions of followers, through which it is possible to bill a high daily amount with advertisements.

Another interesting example is the game Counter-Strike: Global Offensive, in which a special look of the AK-47 machine gun – just contextualizing,said game is a shooter – was sold for $400,000,001.

However, it is not always that these digital goods have an economic value. The social media accounts of non-famous people, with few followers, despite containing several photographs and memories – which, of course, have a value to their owner – have no economic value.

in this scenario, a question that is currently asked a lot: what happens to these digital assets when there is the death of its owner?< / strong>

It is up to the law to monitor these developments and try to respond to the problems that arise.

Inheritance Law

Succession law is a complex of legal principles and rules that govern the transfer of a natural person’s assets, whether assets or liabilities, to after death, by virtue of the law or testament.

Oliveira and Amorim (2018, P.37), define that “Succession is the act or effect of succeeding. It has the sense of substitution of persons or things, transmission of rights, charges or goods, in a legal relationship of continuity”.

Within the succession there is the figure of legitimate succession, which refers to the transfer causa mortis granted to persons designated in the legislation as necessary heirs of the author of the inheritance, identified through the so-called Order of hereditary vocation or by specific rules of appointment of successors. It is these individuals who will be called upon to acquire the inheritance, either in the absence of each other or in situations of competition between them.

The Brazilian Civil Code adopts as criteria family ties, consanguineous (biological affiliation) or civil (adoption), and the bond arising from marriage or stable union.

The legitimate succession can comprise the entire hereditary estate, or restrict to the part not understood by the will. The natural person can, during his life, only dispose of the available part of his assets, corresponding to 50% of the total of his patrimony (a percentage that will be earned only when he dies). In the meantime, Maria Berenice Dias teaches (2021, P. 153-154):

The holder of the patrimony cannot freely dispose of all his property, neither during his life, nor for after his death. He can only donate what he can dispose of by Will (CC 549). Thus, even if he is fully capable, the freedom of those who have necessary heirs is not absolute. The law chooses certain persons who will necessarily receive part of the estate: descendants, ascendants and spouse. These are the so-called necessary heirs. Half of the inheritance goes to them. The legitimate succession imposes the transfer of half of the patrimony to whom the law elects as heir. Only the other half is available, and the holder is free to use it at will. He can donate as long as he lives or, by means of a will, he can leave to whom he pleases all the available half, a fraction of it, or certain goods (CCC 1.786). Testamentary heirs receive a share-part of the inheritance, and legatees-identified property.

The figure of The Testament is also about a last manifestation of a person’s will, in which the deceased disposes, for after death, in whole or a part of his assets to third parties.

There are several legal requirements and formalities for drawing up a Will, which must be strictly respected to be considered valid, under penalty of nullity.

The Brazilian Civil Code provides for three ordinary forms of will:

International and Comparative Law

As stated, the issue of digital heritage is not unique to a single country, but rather a global challenge that requires comprehensive and adaptable legal approaches. Around the world, lawmakers and legal experts are seeking ways to deal with the transfer of digital assets after the death of the holder.

In countries such as the United States and some European countries such as the United Kingdom and France, specific legislation has been proposed and in some cases implemented to address digital heritage. These laws aim to clearly define the rights of heirs in relation to digital assets and establish procedures for their proper transfer and Management4.

For example, in the United States, some states have enacted laws that allow users to designate a “digital executor” in their wills to handle their online accounts after death. These executors have the legal authority to access and manage the deceased’s digital accounts according to their instructions.

However, despite advances in some countries, there is still a lack of harmonization and consistency in digital inheritance laws around the world. This can create challenges for individuals and families with digital assets in different jurisdictions.

In addition, in many developing and emerging countries, specific legislation on digital heritage is still in the early stages of development. This can result in legal uncertainty and practical difficulties for heirs when dealing with digital assets in succession cases.

Given this, it is essential that legislators continue to monitor and respond to changes in the digital environment by developing updated and adaptable laws and regulations that protect the rights of individuals and ensure a smooth and fair transition of digital assets after the death of the holder. International cooperation and sharing of best practices are also key to addressing the global challenges presented by digital Heritage.

Conclusion

For all the above reasons, all digital assets of an exclusively patrimonial nature must be transferred to successors after the death of their owner. In the case of non-patrimonial digital assets, these should not be transferred to their relatives at the time of death, with the exception of the express manifestation of the holder while still alive.

However, exceptionally, access to these assets must be possible, when there is a Just Cause, which must be evaluated individually by the judiciary, in order to try, in the best possible way, to reconcile the interests at stake.5

In addition to the legal and procedural issues surrounding digital inheritance, it is important to consider the ethical and human aspects related to digital assets. As mentioned, digital assets can contain not only patrimonial value, but also memories, relationships and personal identity of the deceased. Therefore, when dealing with the transfer and management of these assets, it is critical to ensure that the interests and wishes of the holder are respected. The possibility of access to non-patrimonial digital assets, under exceptional circumstances and upon judicial evaluation, aims to balance the rights of heirs with respect to the privacy and dignity of the deceased, through sensitive access, recognizing not only their financial value, but also their emotional and personal significance for those we leave behind.

1 GUGELMIAN, Philip. Counter-Strike: Global Offensive Skin sells for $ 400k Adrenaline, 2023. Available at: https://www.adrenaline.com.br/games/skin-de-counter-strike-global-offensive-e-vendida-por-us-400-mil/. accessed on: 15 jan. 2024

2 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023. p. 337

3 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. pp. 124-125.

4 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.

5 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. Q. 128

OLIVEIRA, Euclides; Amorim, Sebastião. Inventory and sharing: theory and practice. 25. ed. São Paulo: Saraiva Educação, 2018.

DIAS, Maria Berenice. Handbook of successions. 7. ed. rev., current. and ampl. Salvador: Editora JusPodivm, 2021.

CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; Nogueira, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Belo Horizonte. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.

ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017.