Digital assets are the electronic records you own or have a right to access — email, cloud storage, photos, cryptocurrency, online bank and brokerage logins, social media, domain names, and loyalty points. In Florida, a personal representative, trustee, or agent under a power of attorney can manage those assets after death or incapacity under the Florida Fiduciary Access to Digital Assets Act, Chapter 740, Florida Statutes (effective July 1, 2016). But access is not automatic: it follows a strict order of priority, and if you do nothing, the terms of service you clicked through years ago may control who sees what.
I have sat across the table from too many surviving spouses who could pay the mortgage but could not get into the email account where every statement, password, and family photo lived. The law has improved a great deal since 2016. The planning, for most Florida families, still lags behind. Here is how it actually works, and what you should do about it.
What counts as a digital asset under Florida law
Chapter 740 defines a “digital asset” broadly as an electronic record in which an individual has a right or interest. That sweeps in far more than people expect. It does not include the underlying tangible device — the phone or laptop itself is ordinary personal property — but it does include the content stored on or accessed through it.
In practical terms, your digital estate usually breaks into a few buckets:
- Accounts with real money. Online-only bank accounts, brokerage logins, PayPal, Venmo, and cryptocurrency wallets. Crypto is the sharpest example: lose the private key or seed phrase, and the asset is gone forever — no bank, no court, no statute can recover it.
- Accounts that are gateways. Your primary email is the master key. Password resets for nearly everything route through it, which is why a fiduciary who controls the email often controls the whole estate.
- Accounts with sentimental, not financial, value. Photo libraries in iCloud or Google Photos, social media, and stored messages. These rarely show up on a balance sheet but are frequently what a grieving family fights hardest to preserve.
- Accounts that generate income. A monetized YouTube channel, an e-commerce store, a domain portfolio, or a freelance platform profile. These can be genuine estate assets with ongoing value.
One important distinction Chapter 740 carries over from federal privacy law: the content of an electronic communication (the body of your emails, the text of your messages) gets stronger protection than the catalogue of that communication (the fact that an email was sent, to whom, and when). A fiduciary may readily get the catalogue; getting the content requires clearer authorization. Plan for the stronger standard and the rest follows.
The three-tier rule: who decides who gets access
Florida adopted the Revised Uniform Fiduciary Access to Digital Assets Act, and its central feature is a priority ladder. When a fiduciary asks a custodian — Google, Apple, Meta, a bank — for access, the custodian looks at three things in this order:
- The online tool, if the company offers one. Google’s Inactive Account Manager and Apple’s Legacy Contact are the leading examples. If you used the platform’s own tool to name someone, that choice controls — and it overrides contrary instructions in your will. This is the single most overlooked step in digital estate planning.
- Your estate planning documents. If there is no online tool (or you did not use it), the custodian follows the directions in your will, trust, or power of attorney — provided those documents actually grant authority over digital assets. Silence here is fatal; a generic will that never mentions digital assets may leave your fiduciary with the catalogue but not the content.
- The terms-of-service agreement. If you addressed nothing in tiers one or two, the platform’s own boilerplate decides. That contract was written to protect the company, not your family, and it frequently means the account is simply frozen and deleted.
The lesson is blunt: control happens at the top of the ladder. A perfectly drafted will loses to a Google Inactive Account Manager setting your client forgot they ever touched. We routinely walk Florida clients through both layers in the same sitting — the documents and the in-platform settings — because one without the other leaves a gap.
Putting digital assets into your Florida documents
For your estate plan to do its job, three documents need explicit digital-asset language.
Your will
Your will should name the personal representative and expressly grant authority over digital assets and the content of electronic communications, tracking the language of Chapter 740. Without that express grant, a custodian can lawfully refuse to hand over email content even to a court-appointed representative.
Your revocable trust
If you use a revocable living trust — common in Florida to avoid probate — the trustee provisions should mirror the same authority. Note a practical wrinkle: many digital accounts cannot be “titled” in a trust the way a house or brokerage account can. You usually grant the trustee authority to access and manage them rather than retitling the account itself.
Your durable power of attorney
This one matters for incapacity, not death, and it is the document people most often neglect. Under Florida’s power-of-attorney statute (Chapter 709), authority must generally be stated specifically. Add explicit digital-asset language so your agent can pay bills, access accounts, and manage subscriptions if you are alive but unable to act. A will does nothing while you are still breathing.
Why surviving spouses should pay particular attention
Florida gives a surviving spouse strong protection through the elective share: under section 732.201, Florida Statutes, a surviving spouse may elect to take 30% of the decedent’s “elective estate,” and what counts toward that estate is defined broadly in section 732.2035. The elective estate is not limited to probate property — it reaches a wide range of assets the decedent owned or controlled at death.
Here is where digital assets get interesting, and where surviving spouses get hurt. A cryptocurrency wallet, an online brokerage account, or a monetized online business is part of the decedent’s wealth. If the surviving spouse cannot identify or access it, two problems follow:
- Valuation. The elective share is a percentage of the elective estate, so the estate must first be valued accurately. Hidden or inaccessible crypto and online accounts can quietly distort that figure — sometimes to the spouse’s disadvantage, sometimes in disputes with stepchildren from a prior marriage.
- Recovery. Even an asset everyone agrees exists is worthless to the estate if no one holds the private key or login. A surviving spouse can be entitled to 30% of something the family can no longer reach.
This is most acute in blended families — a frequent reality across South Florida. When a spouse and adult stepchildren are at odds, control of the decedent’s email and financial logins becomes leverage. The party who can log in often controls the narrative about what the estate is worth. Clear documents and a current inventory protect the spouse’s elective-share rights before any of that can start. For couples weighing how digital wealth, long-term care, and spousal protection fit together, the asset-protection and elder law strategies our colleagues use — see Morgan Legal’s overview of and the role of a — illustrate the same coordination principles we apply to a Florida estate. For Florida-specific guidance, our firm’s can map the elective share against your full digital and financial picture.
Building a usable digital asset inventory
The best legal drafting in Florida cannot help a fiduciary who does not know an account exists. An inventory closes that gap. Build one, keep it current, and store it where your fiduciary can actually reach it — never inside the will itself, which becomes a public record once filed in probate.
A workable inventory lists, for each account: the platform, the username or wallet identifier, the general category (financial, sentimental, income-producing), and a pointer to where the credentials live. Note the credentials’ location, not the passwords themselves, in any document that could be exposed.
A few practices that prevent the worst outcomes:
- Use a password manager and configure its emergency-access or legacy feature so a trusted person can be granted access after a waiting period.
- Set the platform legacy tools now — Google Inactive Account Manager and Apple Legacy Contact — because of where they sit on the priority ladder.
- Treat cryptocurrency separately and seriously. The seed phrase must be recorded somewhere recoverable. A hardware wallet whose key dies with the owner is a permanent loss, full stop.
- Review after life changes. Marriage, divorce, a new business, a new platform — each can add or strand a digital asset.
A short, practical sequence
If you want a path that actually gets done, do these in order. First, update your will, trust, and durable power of attorney with explicit Chapter 740 digital-asset authority. Second, set the in-platform legacy tools so the top tier of the priority ladder reflects your wishes. Third, build and store a living inventory. Then revisit it once a year. The documents and the platform settings have to agree — that alignment is the whole game.
Digital assets are no longer a niche concern; they sit alongside the homestead and the IRA as core estate property, and for surviving spouses they bear directly on the elective share. If you would like to review how your online accounts fit your Florida plan, see our wills and trusts overview or reach out to schedule a consultation.
Frequently Asked Questions
Does my Florida will automatically give my personal representative access to my email and online accounts?
Not necessarily. Under Chapter 740, Florida Statutes, a custodian like Google or Apple follows a three-tier priority order. A platform’s own legacy tool (such as Google Inactive Account Manager) overrides your will, and even a court-appointed personal representative may be denied the content of your emails unless your will expressly grants authority over digital assets and electronic communications. Generic wills that never mention digital assets frequently leave a gap.
What is the Florida Fiduciary Access to Digital Assets Act?
It is Chapter 740 of the Florida Statutes, effective July 1, 2016, Florida’s version of the Revised Uniform Fiduciary Access to Digital Assets Act. It lets a personal representative, trustee, agent under a power of attorney, or guardian manage a person’s digital assets after death or incapacity, while preserving stronger privacy protection for the content of electronic communications than for the mere record that a communication occurred.
How do digital assets affect a surviving spouse's elective share in Florida?
A surviving spouse can elect to take 30% of the decedent’s elective estate under section 732.201, Florida Statutes, and the elective estate is defined broadly in section 732.2035. Cryptocurrency, online brokerage accounts, and monetized online businesses are part of that wealth. If they cannot be identified, valued, or accessed, the surviving spouse’s 30% share can be understated or effectively unreachable — a real risk in blended families.
Can cryptocurrency be recovered by my estate if I don't share the key?
No. Cryptocurrency held in a wallet whose private key or seed phrase dies with the owner is permanently lost. No statute, custodian, or court can recover it. For that reason, the recovery information must be recorded somewhere your fiduciary can reach — through a password manager’s emergency access, a sealed document, or another secure method referenced in your estate plan.
What documents should include digital asset language in Florida?
Three: your will (granting the personal representative authority over digital assets and the content of communications), your revocable trust (giving the trustee parallel authority), and your durable power of attorney under Chapter 709 (so an agent can act during incapacity, since a will only operates after death). Pair these documents with the platforms’ own legacy tools and a current inventory.
