The Digital Afterlife: Post-Mortem Privacy and Proprietary Rights in the Information Age

The digital inheritance problem does not merely raise statutory questions. It exposes a deeper constitutional tension between competing rights: The proprietary claims of heirs and the privacy interests of the deceased.

Digital assets and the crisis of succession law

Indian succession law evolved within a legal imagination structured around tangible property. The Hindu Succession Act, 1956 and the Succession Act, 1925 were designed for a world of land, jewellery, securities, physical manuscripts and corporeal possessions. Even when intangible property came to be recognised, such as intellectual property or contractual rights, the conceptual model remained anchored in identifiable ownership and transmissibility.

The digital age has fundamentally disrupted this framework. Today, individuals routinely hold substantial economic and social value in assets that exist entirely within digital ecosystems. These include cryptocurrency wallets, monetised YouTube channels, influencer accounts, domain portfolios, cloud-based intellectual property, subscription-based digital libraries, and platform-generated revenue streams. For many individuals, particularly digital creators and professionals, such assets constitute the most valuable component of their estate.

Yet, despite their economic and personal significance, Indian statutory law remains almost entirely silent on their treatment after death. The Information Technology Act, 2000 governs electronic records, data protection obligations, and intermediary liability, but does not address succession. Neither the Hindu Succession Act nor the Succession Act makes any reference to digital property, digital accounts or platform-based assets. The result is that the fate of such assets is determined not by public law, but by private contractual arrangements embedded in platform terms of service.

Most digital platforms operate on a licensing model rather than a model of ownership. Users are granted limited, non-transferable access to services, often subject to clauses stating that accounts terminate upon death. Apple’s iCloud terms, for instance, explicitly provide that accounts are personal and that rights do not survive death.¹ Similar clauses exist across major platforms, including Google, Meta and Amazon. In effect, the death of the user triggers the extinction of what may otherwise be economically valuable interest.

This contractual displacement of succession law raises a serious normative concern. Succession is a matter of public law, rooted in statute and social policy. It determines how wealth is transferred across generations and reflects deep societal values. Allowing private corporations to dictate post-mortem outcomes through standard-form contracts effectively privatises succession. This is not merely a technical lacuna, but a structural failure of the legal system to keep pace with socio-economic reality.

The legal ambiguity is further complicated by the unresolved question of whether digital assets constitute “property” for the purposes of succession. Indian law has, however, consistently adopted an expansive understanding of property. In Vodafone International Holdings BV v. Union of India², the Supreme Court recognised that valuable commercial rights and entitlements, even when intangible, constitute property capable of legal protection. Likewise, in Tata Consultancy Services v. State of A.P. ³, the Court held that software, despite being intangible, is capable of being bought, sold, transferred and therefore qualifies as “goods”. These decisions reflect a broader judicial willingness to adapt traditional legal concepts to technological realities.

If cryptocurrency holdings, monetised accounts and platform-generated revenues possess economic value, are capable of transfer, and are treated as assets for taxation and commercial purposes, it becomes difficult to justify their exclusion from the domain of succession merely because they exist within digital infrastructure. The persistence of contractual clauses negating inheritance therefore appears less as a reflection of legal principle and more as a consequence of regulatory inertia.

Constitutional conflict: property, privacy and the posthumous person

The digital inheritance problem does not merely raise statutory questions. It exposes a deeper constitutional tension between competing rights: The proprietary claims of heirs and the privacy interests of the deceased.

From the perspective of heirs, Article 300-A of the Constitution provides that no person shall be deprived of property save by the authority of law. Although the right to property is no longer a fundamental right, it remains a constitutional right with substantive protection. Where a deceased individual leaves behind economically valuable digital assets, denial of access to lawful heirs effectively deprives them of property without legislative sanction. The deprivation flows not from a law enacted by Parliament, but from private contractual clauses imposed unilaterally by foreign corporations.

In K.T. Plantation (P) Ltd. v. State of Karnataka⁴, the Supreme Court clarified that Article 300-A protects not only the formal title but the substantive value inherent in property. The Court emphasised that deprivation of property must be backed by law and must satisfy standards of fairness. Applying this reasoning, the extinction of valuable digital assets through contractual terms lacking statutory backing raises constitutional unease. A private platform’s terms of service cannot plausibly be equated with “authority of law” for the purposes of Article 300-A.

At the same time, digital inheritance implicates concerns that are qualitatively distinct from traditional forms of property. Digital accounts often contain deeply personal material: private conversations, drafts, photographs, medical information, political opinions, and intimate reflections. Unrestricted access by heirs could expose aspects of a person’s life that the individual may never have intended to share.

The Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India⁵ recognised privacy as an intrinsic part of personal liberty grounded in dignity and autonomy. Central to the Court’s reasoning was the idea of informational self-determination: The ability of individuals to control how information about them is accessed and used. The question that inevitably arises is whether this control necessarily ends at death.

Indian courts have increasingly acknowledged that certain aspects of dignity persist beyond death. In Parmanand Katara v. Union of India⁶, the Court held that the right to dignity extends even to the treatment of a dead body. In Deepa Jayakumar v. A.L. Vijay⁷, the Madras High Court recognised that reputation, as an aspect of dignity, survives death and warrants legal protection. These cases suggest that the Constitution does not treat death as a point at which all rights evaporate. Rather, certain interests grounded in dignity continue to merit respect.

Digital records today function not merely as repositories of information, but as extensions of identity. Social media profiles, message histories and cloud archives collectively constitute a digital persona. Treating such material as ordinary inheritable property risks collapsing the distinction between economic assets and personal autonomy. The challenge, therefore, is not simply to recognise digital inheritance, but to construct a framework capable of differentiating between what should pass to heirs and what should remain protected.

This constitutional tension makes clear that neither absolute inheritance nor absolute privacy provides a satisfactory solution. A principled balancing exercise is unavoidable.

Comparative models and the case for a digital testamentary framework

Other jurisdictions have begun to grapple with these issues and offer useful comparative insights. The German approach represents one end of the spectrum. In its 2018 decision concerning a deceased user’s Facebook account, the German Federal Court of justice held that digital accounts form part of the inheritable estate under the Doctrine of Universalsukzession (universal succession).⁸ The Court reasoned that digital correspondence is functionally analogous to letters and diaries, which have always passed to heirs. The medium of storage, it held, does not justify differential treatment. Under this model, heirs step into the legal position of the deceased in relation to digital accounts.

The American approach, reflected in the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), adopts a more nuanced position. RUFADAA distinguishes between different categories of digital material. Fiduciaries may access certain account information such as financial components and metadata, but access to the substantive content of communications requires explicit consent by the user, typically expressed through a will or platform-based settings.⁹ This model seeks to balance proprietary interests with privacy concerns by defaulting towards privacy in the absence of express consent.

Both approaches offer lessons for India. The German model is strong on inheritance but insufficiently attentive to privacy. The American model recognises privacy but risks overcomplicating access to economically valuable assets. Indian law must develop its own approach rooted in constitutional values and social realities.

A principled “Digital Testamentary Framework” for India could rest on three core ideas.

First, digital assets should be classified according to their nature. Assets that are predominantly economic, such as cryptocurrency holdings, monetised accounts, domain portfolios and cloud-stored intellectual property, should be treated as inheritable property by default. Denying heirs access to such assets merely enriches platforms and undermines the economic rationale of the succession law. At the other end of the spectrum, strictly private communications such as personal emails, direct messages and private journals should attract a presumption of privacy. In the absence of explicit consent by the deceased, access to such content should be restricted. Between these extremes lie hybrid assets such as social media profiles, photographs and blogs, which combine personal and expressive elements. These may justify intermediate solutions such as memorialisation or limited access.

Second, Indian law must confront the problem of platform dominance. Service providers operating within Indian jurisdiction should not be permitted to override succession law through standard-form contracts. The principle that contractual terms cannot defeat statutory rights is well established. Succession is not merely a private matter; it reflects social policy and public interest. Just as tenancy law, labour law and consumer law limit contractual freedom in the public interest, succession law must assert primacy over platform terms when dealing with post-mortem assets.

Third, the law should encourage individuals to exercise autonomy over their digital estates. Recognition of digital wills, express testamentary instructions regarding online accounts, and legally binding platform-based nomination mechanisms would allow individuals to meaningfully determine the fate of their digital persona. Such mechanisms would reduce uncertainty, respect autonomy and reduce the burden on courts.

Importantly, such a framework need not emerge overnight through sweeping legislation. Indian courts have historically filled legislative gaps through principled guidelines, as seen in Vishaka v. State of Rajasthan¹⁰. A similar judicial intervention, grounded in constitutional values, could begin shaping doctrine until Parliament acts.

Conclusion

The digital estate is no longer a marginal phenomenon. It constitutes a central component of economic life, social identity and personal expression. Yet Indian law continues to treat it as an afterthought. The result is a system in which private corporations effectively determine the fate of digital assets, while heirs and individuals are left without clear legal protection.

This is untenable in a constitutional democracy. Succession is a matter of public law. It cannot be ceded to terms of service drafted in corporate boardrooms. At the same time, digital inheritance cannot simply replicate the logic of physical inheritance. The personal nature of digital data demands sensitivity to privacy and dignity.

Indian law must therefore move towards a principled middle path. Recognising the inheritable nature of economically valuable digital assets while protecting the privacy of strictly personal material is not only doctrinally coherent but constitutionally necessary. The longer this vacuum persists, the more entrenched corporate control over digital afterlives will become. Legal clarity is no longer a theoretical concern; it is an urgent requirement of justice in the information age.