INTRODUCTION
The rapid development of information technology and the Internet has created an entirely new category of assets that exist exclusively within digital environments. Social media accounts, email accounts, digital wallets, online digital content, cryptocurrencies, and even the entire digital legacy of an individual – including data, online content, and property rights arising from digital activities – have increasingly acquired significant economic and sentimental value. Global statistics indicate that more than sixty percent of the world’s population currently uses social media platforms, while in Vietnam the value of cryptocurrency transactions has at times reached approximately USD 120 billion. These developments raise a crucial legal question: when a person dies, what happens to their digital assets and online accounts, and who has the legal authority to manage or inherit them?
While traditional inheritance law provides relatively comprehensive mechanisms for transferring tangible property and conventional financial assets, the legal regulation of digital assets remains unclear in many jurisdictions, including Vietnam. In practice, numerous disputes have arisen internationally concerning access to the online accounts, personal data, and digital assets of deceased individuals. These disputes highlight the need for legal solutions capable of balancing several competing interests: the inheritance rights of heirs, the privacy rights of the deceased, and the confidentiality obligations of digital service providers.
In this context, the study of the right to control digital assets as inherited estates carries both theoretical and practical significance. From a theoretical perspective, it is necessary to determine whether digital assets can be recognized as property under civil law and, if so, how their legal characteristics differ from those of traditional tangible property. Furthermore, the concept of control over digital assets must be analyzed in order to clarify the scope of rights that heirs may exercise after the owner’s death. These rights may include full ownership rights – such as possession, use, and disposition or merely limited rights of access derived from service contracts with digital platforms.
From a practical perspective, legislative and judicial experiences from jurisdictions that have already addressed digital inheritance issues provide valuable insights for countries that are still developing legal frameworks in this area. Therefore, the objectives of this article are threefold. First, it aims to systematize the theoretical foundations relating to digital estates and the right to control digital assets. Second, it examines international legal experiences concerning the management and transfer of digital assets after death. Third, it evaluates the current legal framework in Vietnam and proposes recommendations for improving Vietnamese law in order to ensure effective protection of inheritance rights in the digital age.
THEORETICAL FOUNDATIONS OF DIGITAL ESTATES AND THE RIGHT TO CONTROL DIGITAL ASSESTS
A. Concept of digital assets
Digital assets may be broadly understood as assets that exist in the form of electronic data created, stored, and managed within digital systems and that possess economic value while being subject to the control of specific individuals or entities. Unlike tangible property, digital assets do not have physical form; however, they may still be recognized as objects of property relations when certain legal conditions are satisfied.
From a theoretical perspective, the recognition of digital assets as property can be explained through classical legal theories of property. According to Jeremy Bentham’s utilitarian theory, property essentially represents a legally protected expectation that allows individuals to derive benefits from certain resources in a secure manner. In other words, the value of property – including digital assets – does not lie in its physical existence but rather in the fact that the rights associated with it are recognized and protected by law.
Similarly, Wesley N. Hohfeld’s analytical framework distinguishes different legal relations associated with the concept of rights, including claim rights, privileges, powers, and immunities. This framework helps differentiate between genuine property rights that impose obligations on others to respect the owner’s interests and contractual rights that merely grant privileges under agreements with service providers. In the digital environment, many user rights arise from contractual relationships with digital platforms rather than absolute ownership rights, which complicates the issue of inheritance.
Another important theoretical approach is Thomas W. Merrill’s concept of the right to exclude, which emphasizes that the core of property ownership lies in the ability to prevent others from using or interfering with an asset without authorization. Building upon this idea, Henry E. Smith argues that property law functions as a system that simplifies information for third parties by clearly defining boundaries of ownership. Once these boundaries are established, outsiders can easily understand which resources they are prohibited from accessing or using without the owner’s consent.
Based on these theoretical foundations, an entity existing in the digital environment may be recognized as property if the law grants individuals the ability to control it, derive benefits from it, and exclude others from interfering with it. In other words, digital assets must be interpreted within a framework of property rights that identifies a specific owner, a clearly defined object, and an enforceable mechanism of legal protection.
B. Digital assets as inherited estates
Based on the theoretical foundations discussed above, digital inheritance may be defined as the transfer of digital assets belonging to a deceased person to their heirs in accordance with inheritance law. A digital estate therefore includes all digital assets that were owned or controlled by an individual at the time of their death and that are capable of being transferred to heirs either by will or by operation of law.
Under the current Vietnamese Civil Code 2015, inheritance property is defined as the assets belonging to the deceased, including the deceased’s separate property and the deceased’s share in jointly owned property. In principle, any asset that belongs to the deceased – whether tangible or intangible – may form part of the inheritance estate unless explicitly excluded by law. From this perspective, digital assets should not fall outside the scope of inheritance law merely because they lack physical form. In practice, many types of digital assets already participate in civil transactions, such as cryptocurrencies, digital reward points, domain names, and digital intellectual property. These assets possess measurable economic value and can often be transferred or traded in digital markets. Therefore, when they belong to the deceased, they may logically be considered part of the inheritance estate. However, compared with traditional tangible property, digital estates possess several unique characteristics that must be considered when determining their legal status.
First, the identification of ownership presents significant challenges. Digital assets cannot be possessed physically in the traditional sense. Instead, ownership is usually demonstrated through digital credentials or technological indicators such as account identifiers, transaction histories, cryptographic keys, or blockchain records. In some cases, the person whose name appears on an account may not be the true owner of the digital asset, while the real owner may remain anonymous or may not directly control the access credentials. This complexity creates significant difficulties in verifying ownership at the time of opening succession.
Second, the identification of the object of inheritance requires careful consideration. Digital platforms often contain various forms of information and content, but not all such data can be considered transferable property. For example, a social media account may contain personal messages, photographs, and other forms of data that do not necessarily constitute property rights. Consequently, it is necessary to distinguish between digital elements that possess economic value and those that are purely personal in nature.
Third, the enforcement of inheritance rights may depend heavily on cooperation from digital service providers. Many digital assets exist within systems operated by private platforms such as social networks, cloud storage services, or cryptocurrency exchanges. As a result, heirs may only gain effective control over digital assets if these service providers allow access or facilitate the transfer of accounts or data. Without such cooperation, inheritance rights may exist only in theory but not in practice.
Fourth, digital assets often contain both economic and personal elements. For instance, a social media account may generate commercial value through advertising or branding activities while simultaneously containing personal communications and sensitive data. Transferring full access to such accounts to heirs may potentially conflict with the privacy rights of the deceased or of third parties who communicated with the deceased. Therefore, legal frameworks must balance the economic aspects of digital assets with the need to protect personal data and privacy.
Based on these considerations, digital assets should be recognized as part of the inheritance estate only when several conditions are satisfied. The asset must belong to the deceased at the time of death, must be capable of legal transfer, must be identifiable and capable of valuation, and must be subject to enforceable property rights. When these conditions are met, digital assets may legitimately form part of the inheritance estate. Accordingly, this article proposes the following definition: A digital estate consists of all digital assets owned or controlled by an individual at the time of death that can be transferred to heirs under applicable inheritance law.
C. The right to control digital assets at the time of opening succession
1. Concept of the right to control digital assets
The concept of control over digital assets refers to the set of powers enabling an individual to access, manage, use, and transfer digital assets within digital systems. In the context of inheritance, control becomes particularly significant because digital assets are typically transferred through access rights rather than through physical delivery.
Unlike tangible property, where inheritance often involves the physical transfer of objects, inheritance of digital assets primarily involves the transfer of access credentials and management rights. If heirs cannot obtain the necessary passwords, private keys, or authentication information, they may be unable to access the digital assets even when they are legally entitled to inherit them.
Modern legislative approaches increasingly recognize that digital assets should only be considered inheritable when control over them can be effectively transferred to heirs. In other words, nominal ownership alone is insufficient; the heirs must also possess the practical ability to exercise the rights associated with the asset.
2. Content of the right to control digital estates
From a legal perspective, the right to control digital assets generally consists of several specific powers that correspond to traditional property rights. For example, the owner of a cryptocurrency wallet possesses the ability to access the wallet through private keys, conduct transactions, and transfer digital currency to other users. These powers closely resemble the traditional rights of possession, use, and disposition that characterize property ownership.
However, control over digital assets is often influenced by the technological architecture of digital systems and by contractual agreements with service providers. In many cases, digital platforms grant users limited licenses rather than full ownership rights. For instance, an email account user does not technically own the email service but instead enjoys the right to use the service under specific contractual terms. These contractual conditions may allow service providers to terminate or restrict access to the account, including after the user’s death.
This contractual nature of many digital services creates significant obstacles for inheritance law. Even if national law recognizes certain digital assets as part of the inheritance estate, service providers may refuse to grant heirs access to the accounts if their terms of service prohibit account transfer. Consequently, heirs may face legal and practical barriers when attempting to exercise control over digital assets.
Another important issue concerns the enforceability of inheritance rights against third parties. In traditional inheritance law, heirs automatically acquire the property rights of the deceased and may demand that third parties return or respect the inherited property. In the digital context, however, the most significant third parties are digital service providers who manage the technological infrastructure storing the digital assets. For example, heirs seeking access to a deceased person’s social media account may need the cooperation of the platform provider in order to obtain login access or retrieve stored data. If the provider refuses to cooperate based on privacy policies or contractual obligations, heirs may find it difficult to enforce their rights unless national legislation explicitly requires service providers to assist them. A well-known example illustrating these difficulties is the Estate of Ellsworth case in the United States, in which the family of a deceased soldier requested access to his Yahoo email account. Yahoo refused to provide the password due to privacy policies, and the family ultimately received only printed copies of the email content after legal proceedings.
This case illustrates the broader challenge of digital inheritance: inheritance law alone cannot guarantee effective control over digital assets without cooperation from digital service providers. Therefore, effective regulation of digital inheritance must integrate principles of inheritance law, property law, and data protection law.
INTERNATIONAL EXPERIENCES REGARDING THE RIGHT TO CONTROL DIGITAL ASSETS AS INHERITED ESTATES AND LESSON FOR VIETNAM
A. International Approaches to managing digital assets after death
Globally, the legal regulation of digital inheritance remains relatively new and continues to evolve. Different jurisdictions have adopted varying approaches in addressing the fundamental question of whether heirs should have the right to access and manage the digital assets of deceased individuals and, if so, under what conditions.
1. The United States
In the United States, inheritance law is primarily governed at the state level, which has resulted in diverse legal approaches to digital inheritance. In order to create greater uniformity, the Uniform Law Commission adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2015. This model law has since been enacted in most U.S. states and serves as one of the most influential legislative frameworks governing digital inheritance.
RUFADAA establishes a three-tier priority system that determines how fiduciaries or heirs may access the digital assets of a deceased individual. The first and highest level of authority is the online tool directive provided by digital service providers. Many platforms such as Facebook and Google allow users to designate a trusted individual who may manage or access their accounts after death. If the user has made such a designation through an online tool, that instruction takes precedence over other documents.
The second level of authority arises from traditional legal instruments such as wills, trusts, or powers of attorney. If the deceased individual did not use an online tool provided by the service provider, the instructions contained in a will or similar document will determine who may access the digital assets.
The third level applies when neither online tools nor testamentary instructions exist. In such cases, the terms of service agreements of digital service providers determine the extent to which fiduciaries may access the deceased user’s digital assets.
RUFADAA also introduces important privacy protections. For example, unless the user explicitly authorized disclosure of the content of electronic communications, fiduciaries may only obtain limited information such as the list of email correspondents or transaction records rather than the full content of private communications. This approach attempts to balance two competing interests: the need for heirs to manage digital estates and the protection of the deceased person’s privacy.
The adoption of RUFADAA was influenced by several legal disputes involving access to digital accounts after death. One notable case is Ajemian v. Yahoo! Inc., in which the Massachusetts Supreme Judicial Court held that federal privacy law did not automatically prevent a service provider from disclosing the contents of a deceased user’s email account to the personal representatives of the estate. This decision highlighted the need for clear legislative guidance in resolving conflicts between inheritance rights and privacy obligations.
Overall, the U.S. approach illustrates the importance of establishing a structured hierarchy of legal authority while respecting the autonomy and privacy of the deceased.
2. German
Germany has addressed digital inheritance primarily through judicial interpretation rather than through specific legislation. A landmark decision by the Federal Court of Justice (Bundesgerichtshof – BGH) in 2018 significantly influenced the legal treatment of digital assets in inheritance law.
The case involved the parents of a fifteen-year-old girl who died under unclear circumstances. In order to investigate the cause of death, the parents requested access to their daughter’s Facebook account. Facebook refused to provide access and instead converted the account into a memorialized profile, citing privacy concerns and the platform’s contractual terms.
The parents subsequently filed a lawsuit seeking full access to the account. The Federal Court of Justice ultimately ruled that the Facebook account constituted part of the deceased person’s inheritance estate. According to the court, digital communication stored within the account should be treated in a manner similar to traditional letters or diaries. Consequently, the contractual relationship between the user and Facebook passed to the heirs under the principle of universal succession, which is a fundamental principle of German inheritance law.
The court further reasoned that granting heirs access to the account did not necessarily violate the privacy rights of third parties who had communicated with the deceased. In traditional contexts, letters exchanged with a deceased person may also become accessible to heirs, and participants in such communications must reasonably anticipate this possibility.
In a subsequent decision in 2020, the German court clarified that heirs should be granted direct access to the account rather than merely receiving an exported copy of the stored data. This ruling emphasized that inheritance rights must include effective control over digital assets rather than merely symbolic access.
The German approach demonstrates that traditional principles of inheritance law can be applied to digital assets even in the absence of specific legislation, provided that courts interpret property and contractual relationships in a technologically neutral manner.
3. France
France has taken a distinctive approach by focusing primarily on the protection of personal data after death. The Law for a Digital Republic (2016) introduced provisions allowing individuals to determine in advance how their digital data should be handled after they die.
Under French law, individuals may provide instructions concerning the storage, deletion, or transmission of their personal data after death. These instructions may either be general – registered with a certified third party – or specific to particular digital services. Service providers are legally required to respect such instructions once the individual has died.
If the deceased person did not leave explicit instructions, certain rights may still be exercised by family members. For example, relatives may access digital data necessary for the settlement of the estate, obtain digital items that possess sentimental value such as photographs or personal messages, and request the deletion or closure of the deceased person’s accounts.
The French model places strong emphasis on protecting personal data and respecting the wishes of the deceased. At the same time, it provides limited rights for relatives to manage digital assets necessary for inheritance administration.
B. Lessons for Vietnam
The experiences of these jurisdictions provide several valuable lessons for Vietnam when developing legal regulations concerning digital inheritance.
First, digital assets should be explicitly recognized as potential objects of inheritance under civil law. Without such recognition, courts may encounter difficulties in resolving disputes involving digital property.
Second, individuals should be granted the right to determine the fate of their digital assets after death through wills or digital directives. Allowing individuals to designate heirs or administrators of digital assets would significantly reduce disputes among family members.
Third, legislation should clarify the rights and obligations of heirs and estate administrators in relation to digital assets. These rights may include accessing accounts, retrieving digital property, and requesting assistance from digital service providers.
Fourth, effective legal regulation requires cooperation from digital service providers. Therefore, legal frameworks should require service providers operating in Vietnam to establish clear procedures for handling requests related to digital inheritance.
Finally, legal reforms must carefully balance inheritance rights with the protection of privacy and personal data. Digital inheritance laws should ensure that heirs can manage digital assets while preventing unauthorized disclosure of sensitive personal information.
CURRENT VIETNAMESE LAW AND RECOMMENDATIONS FOR IMPROVING THE LEGAL FRAMEWORK ON DIGITAL INHERITANCE
A. Current Vietnam legal framework concerning digital inheritance
At present, Vietnamese law does not contain specific provisions that directly regulate the inheritance of digital assets. The Civil Code 2015, which constitutes the primary legal framework governing inheritance, only provides general provisions concerning inheritance property. Article 612 of the Civil Code defines an estate as the property belonging to the deceased, including the deceased’s separate property and their share in jointly owned property. Although this definition theoretically allows both tangible and intangible assets to form part of the inheritance estate, digital assets have not been explicitly recognized or defined within the legal framework.
The absence of a clear legal definition of digital assets has resulted in significant uncertainty regarding their legal status. For instance, cryptocurrencies and other forms of digital tokens are not officially recognized as legal currency in Vietnam, and their classification as property remains ambiguous. Similarly, assets such as social media accounts, online game items, digital reward points, and domain names are not clearly categorized as property rights under current legislation. Consequently, determining whether such digital assets can be included in an inheritance estate often depends on case-by-case interpretation rather than clear statutory guidance.
In practice, if disputes concerning digital assets arise, Vietnamese courts are still obligated to resolve them based on the fundamental principle that courts may not refuse to adjudicate civil cases due to the absence of applicable law. According to Article 4 of the Civil Code and Article 14 of the Civil Procedure Code, courts must apply analogous legal provisions or general legal principles when specific regulations are lacking. However, reliance on judicial interpretation alone may lead to inconsistent outcomes and legal uncertainty.
Furthermore, Vietnamese legislation concerning information technology and cyberspace has not yet addressed the issue of digital inheritance. Laws such as the Law on Cybersecurity 2018, the Law on Information Technology, and the Law on Electronic Transactions 2023 primarily regulate issues relating to cybersecurity, electronic transactions, and digital services, but they do not provide guidance regarding the management or transfer of digital assets after a user’s death.
Recently, policy discussions in Vietnam have begun to recognize the importance of regulating digital assets. Draft legislation concerning the digital technology industry has proposed recognizing certain types of digital assets, including crypto-assets, as legally protected forms of property. Nevertheless, these initiatives remain in early stages and have not yet addressed the specific legal issues associated with digital inheritance.
B. Legal gaps and practical challenges
The absence of specific legal regulations governing digital inheritance has created several practical challenges for individuals and families in Vietnam. One of the most significant difficulties concerns access to digital financial assets, particularly cryptocurrencies. In many cases, digital wallets are protected by private cryptographic keys that are known only to the owner. If the owner dies without leaving access credentials or instructions, the digital assets may become permanently inaccessible. Several real-world situations have already illustrated this problem, where families were unable to retrieve substantial amounts of cryptocurrency belonging to deceased relatives due to the absence of passwords or private keys.
Another challenge involves access to personal digital accounts, such as social media profiles or email accounts. Family members may wish to access these accounts in order to preserve memories, retrieve important documents, or notify others of the individual’s death. However, most digital platforms impose strict security policies and rarely allow relatives to obtain login access. Instead, platforms typically offer limited options such as converting accounts into memorial pages or permanently deleting them. As a result, heirs often lack the legal authority to request access to accounts even when such access would not violate legitimate privacy interests. These challenges highlight three major legal gaps within the current Vietnamese legal framework.
First, there is no explicit recognition of digital assets as inheritable property. Without such recognition, it is difficult to determine whether digital assets should be included in the inheritance estate.
Second, no legal mechanism exists that allows heirs to request access to digital assets from service providers. Even if heirs can demonstrate their inheritance rights, digital platforms may refuse to cooperate because Vietnamese law does not impose clear obligations upon them.
Third, the relationship between inheritance rights and personal data protection remains unclear. Digital assets often contain personal data not only of the deceased but also of third parties who communicated with the deceased. Therefore, granting unrestricted access to heirs could potentially conflict with privacy rights.
C. Recommendations for improving Vietnamese law
In order to address these legal gaps, Vietnamese law should develop a comprehensive legal framework regulating the inheritance of digital assets. Several legislative measures may be considered.
First, the Civil Code should explicitly recognize digital assets as a form of property. This recognition could be achieved by amending Article 105 of the Civil Code to clarify that property includes digital assets and other forms of electronically stored data that possess economic value. In addition, Article 612 concerning inheritance property could be revised to explicitly include digital assets within the scope of the inheritance estate.
Second, Vietnamese law should allow individuals to determine the fate of their digital assets after death. Similar to the approach adopted in several foreign jurisdictions, individuals could be granted the right to include digital assets within their wills or to designate a digital executor responsible for managing their digital accounts. This mechanism would ensure that the wishes of the deceased are respected and would reduce potential disputes among heirs.
Third, legislation should define the rights and obligations of heirs and estate administrators with respect to digital assets. These rights may include the ability to request information regarding digital assets belonging to the deceased, access digital accounts when necessary for estate administration, and transfer digital assets to heirs in accordance with inheritance rules.
Fourth, the legal framework should establish obligations for digital service providers operating in Vietnam. Service providers should be required to implement procedures allowing heirs or estate administrators to request access to digital assets when supported by appropriate legal documentation, such as a death certificate or a court decision confirming inheritance rights.
Finally, any regulatory framework concerning digital inheritance must carefully balance inheritance rights with personal data protection. Legal provisions should ensure that heirs may access digital assets necessary for estate administration while preventing unauthorized disclosure of sensitive personal information belonging to the deceased or third parties.
CONCLUSION
The growing importance of digital assets in modern society has created new challenges for traditional inheritance law, particularly regarding the identification, transfer, and management of assets that exist exclusively within digital environments. This article has examined the theoretical foundations of digital assets and the concept of the right to control digital estates at the time of opening succession, demonstrating that digital assets may constitute inheritable property when they possess identifiable value and are subject to effective legal control. Through comparative analysis of legal developments in jurisdictions such as the United States, Germany, and France, the study has highlighted different regulatory approaches that attempt to balance inheritance rights with privacy protection and contractual obligations of digital service providers. The analysis also reveals that the current Vietnamese legal framework still lacks clear provisions governing digital inheritance, resulting in significant legal uncertainty for heirs seeking access to digital assets. In order to address these challenges, Vietnamese law should recognize digital assets as a form of property capable of forming part of the inheritance estate, establish mechanisms allowing individuals to determine the disposition of their digital assets after death, and develop legal procedures enabling heirs to obtain lawful access to such assets while ensuring the protection of personal data and privacy. By adopting these measures, Vietnam can gradually build a modern legal framework that effectively regulates digital inheritance in the context of the rapidly evolving digital economy.