“Unrestricted active and continued use” of social media accounts by heirs

The question of what happens to a deceased person’s digital estate is more relevant than ever. It affects digital assets such as cryptoassets as well as social media profiles and accounts. Those often merge private memories with a public presence. And they enable the owner to commercialise them and may create considerable value.

A recent decision by Oldenburg Higher Regional Court (Oberlandesgericht Oldenburg) brings the issue back into focus: in its judgment of 30 December 2024 (case 13 U 116/23), the court ruled that an Instagram account after the user’s death can be used actively continuously and without restriction by the user’s heirs. The court has thus considerably expanded upon the previous case law of the Federal Court of Justice (Bundesgerichtshof – BGH).

This acknowledgment of an unrestricted and now also active right of use shows once again how important it is to manage our digital (assets) throughout our lives and beyond.

This article offers (1) an overview of the previous case law of the Federal Court of Justice, (2) an interpretation of the decision by Oldenburg Higher Regional Court and (3) recommendations and drafting options for digital estates.

1. Principles of the case law of the Federal Court of Justice

The Federal Court of Justice has already formulated key standards for dealing with digital estate items in its landmark decision of 12 July 2018 (case III ZR 183/17).

In that case, the mother of a girl who died in 2012 sued for access to her daughter’s Facebook account to explore possible reasons for her daughter’s death. The Federal Court of Justice ruled that the digital estate is to be treated in the same way as physical assets.

The legal positions of a deceased person are assumed by their heirs by virtue of universal succession (section 1922 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)) – including contracts for use with operators of social media platforms. The contractual relationship between the user and the platform operator is not strictly personal and can therefore be inherited by the user. The Federal Court of Justice explicitly stopped short of specifying whether the inheritability and the resulting right of access can be excluded by standard terms and conditions. This would probably be possible under certain conditions.

In a subsequent decision of 27 August 2020 the Federal Court of Justice clarified on the same case (III ZB 30/20), that the heirs’ right of access also includes the opportunity to take note of a user account and its content “in the same way” as the testator was able to do during their lifetime. In order words, the heirs must be able to navigate within the user account in the same way as the testator was able to do during their lifetime (with the exception of active use).

These principles developed by the Federal Court of Justice have been affirmed in various court decisions (Karlsruhe Higher Regional Court, case 9 U 1/19; Münster Regional Court, case 014 O 565/18; Freiburg Regional Court, case 5 O 169/18).

2. Refinement by Oldenburg Higher Regional Court

Oldenburg Higher Regional Court significantly refined this case law in its decision of 30 December 2024 (case 13 U 116/23). The case concerned the Instagram account of a casting show winner who died in 2019. After his death, his wife as sole heir continued to use the account until Meta (Instagram) changed the account to “memorial status” in 2022, which meant that the profile was still publicly viewable, but access and active use was blocked from then on.

Oldenburg Higher Regional Court ruled that the heir had taken over the contractual relationship with Meta by way of universal succession and that this resulted not only in a right to passively use (read) but also to actively use (write) the account. The court justified this by stating that Meta merely provides a technical platform that does not establish any strictly personal rights. Active use was therefore covered by universal succession, unless the testator had expressly excluded this.

The Higher Regional Court has permitted appeal against its judgment to the Federal Court of Justice, but Meta has apparently not lodged an appeal. The judgment of the Higher Regional Court thus appears to have become final and non-appealable.

3. Significance of the judgment in practice – Recommendations for digital estates

The case and the decision of the Higher Regional Court illustrate how important it is to plan and organise our digital estate with foresight, both from a legal and a practical point of view.

The key questions to ask include: Should all digital (asset) items go to the heirs, and should the heirs have unrestricted access to them? Should any other persons acquire or manage these items instead of the heirs? Should digital items be protected from access by anyone or even deleted?

The answers to these questions lead to the legal provisions. In addition, it must be ensured in purely practical and technical terms that the digital items can be accessed accordingly (or not). It is advisable to take sensible precautions at both levels – legal and practical – to avoid subsequent expenses which may be much higher, whether in relation to disputes among heirs, within the family, in court or with third parties such as platform providers, or even just the technical effort required to obtain access.

There are various legal options for settling one’s digital estate; the following in particular are worth considering:

• Allocation of digital items: Through a will or inheritance contract, whether as part of an overall disposition or a separate disposition for the digital estate (“digital will”), digital (asset) items can be specifically allocated to individual heirs or legatees. Alternatively, the testator can also stipulate that certain accounts are to be closed, and data or data carriers are to be deleted, if necessary, without prior inspection.
• Execution of a will: To ensure that a person’s testamentary dispositions are implemented in accordance with their will, they can order the execution of a will, either in general or limited to the digital estate, appoint an executor, and also provide an executor with specific instructions regarding what is to be administered.
• Power of attorney: One can authorise and instruct another person to take on the task of settling the digital estate during one’s lifetime and beyond (valid before and after death or only after death). Such a power of attorney can and should also be granted to any executor in order to ensure that they are able to act immediately in the worst case.
• Arrangements regarding access: To ensure access in practice for the person responsible, the related arrangements should be made during one’s lifetime. In addition to (physically) documenting and storing access data, central digital solutions may be appropriate (such as a password manager accessible via a master password or virtual storage of the corresponding documentation).
• Extra care for cryptoassets: In the case of blockchain-based digital assets (cryptoassets such as Bitcoin), there are some special features to note. These items are structured in a decentralised and anonymous manner without a contracting partner. A private key is essential for access and administration. Without this private key, the cryptoasset can no longer be accessed and is therefore effectively worthless, even if the succession after death has been legally clarified. This must therefore definitely be taken into account when planning succession for cryptoassets (for example through detailed documentation and secure storage).

4. Conclusion

If someone does not deal with their digital estate during lifetime, all digital (asset) items generally fall to the testamentary or statutory heirs. The actual access for the heirs is not automatically guaranteed by the succession and may not even be wanted. As current case law shows, critical and potentially complex questions about the digital estate can arise after death. Disputes between heirs, within the family, in court or with third parties such as platform operators are fairly common. In addition, it can be technically difficult to obtain access to the digital estate.

That is why everyone should plan their digital estate with foresight and in detail, and organise it while they still can. To do this, they should first ask themselves what they want to happen to their digital items (assets) after their death. This determines what legal and practical arrangements need to be made.

Although further court decisions on this issue are likely to come, there are already specific options for settling one’s digital estate in a clear and legally watertight manner.