Bitcoins of heritage: how Brazil and the world deal with digital heritage

With the digital revolution of the last 20 years, laws have failed to keep pace with changes in society. How to protect your BTCs?

The digital revolution has transformed virtual and physical environments, adding value to products and items that only exist „in the cloud“, or on networks, among them cryptomoedas and Bitcoin.

Even though in the last 20 years the world has changed radically, most laws have failed to keep pace with the revolutions of customs and procedures that have taken over people’s lives.

Billions of people around the world now have their identities linked to profiles in the most diverse social networks and applications, in addition to the assets distributed in digital money and currencies that only exist in the digital environment.

The General Data Protection Act, which came into force this year, seeks to protect this data, but is still not able to answer one important question: when the owner of a digital identity dies, how do we deal with valuable digital assets?

The pandemic has brought even more urgency to this question. Digital assets and digital inheritance are not regulated by law, and in addition to the LGPD, there is also the 2014 Internet Civil Mark, which deals with the issue in a superficial way. Four projects in the Chamber of Deputies deal with the issue, but they are archived.

For this reason, the courts have decided on a case-by-case basis the procedures and interpretations on virtual goods of value.

In the blog of Fausto Macedo, from Estadão, jurists Júlia Fernandes Guimarães and Eduardo Vital Chaves defend in an article the urgency of regulatory clarity:

„Regulation is necessary especially because of the need to treat patrimonial content, as well as the protection of information and personal data (the so-called existential content), whose secrecy, the holder would not like to have violated“.

The article recalls how there are cases of study in the world on the subject. In the United States, since 2015 rules have been established for digital goods, both by the holder and in case of death.

In Europe, the laws are still lagging behind. In the UK, there is no specific law for digital assets and digital inheritance, but the British High Court has rediscovered the existence of Crypto Wealth as an inheritable digital asset.

In Germany, in 2018, justice allowed a family to access the personal Facebook account of a deceased daughter, setting a legal precedent for the whole European bloc. But there are caveats:

„We would also point out that giving heirs access to the digital content of the deceased does not mean allowing accounts to be used freely, nor does allowing messages or other data to be disclosed, as the decision stressed“.

In Brazil, Justice has not found a norm. Each case to date has been analysed in isolation, with decisions against and in favour of access to the digital assets and accounts of deceased persons.

The lawyers say that, in the absence of regulation, one of the solutions would be to stipulate in a will the access and transfer of electronic goods, communicating the express will to allow or not access to these goods. And they add:

„Lawyers have oriented their clients, when making wills, when appropriate, to declare an expression of will regarding the maintenance of secrecy or protection of information of electronic account holders. Even so, the will does not remove the need for people to talk to each other about the existence of electronic goods and their will to exist on social networks after their death“.