Digital assets in a Florida estate plan are the online accounts, files, and electronic records you own or control, along with the legal authority you grant a fiduciary to access them after you die or become incapacitated. Florida governs that authority through the Florida Fiduciary Access to Digital Assets Act, codified in Chapter 740 of the Florida Statutes, which took effect July 1, 2016. Without language in your will, trust, or power of attorney that specifically authorizes access, your personal representative may be locked out of accounts you spent a lifetime building.
I have sat across the conference table from more than one surviving spouse in South Florida who knew exactly where the safe-deposit key was but had no idea how to get into the brokerage app, the cloud photo library, or the email account that quietly held every password reset link. The deeds and bank statements were handled the old-fashioned way. The digital life was a locked black box. This article walks through how to fix that before it becomes someone else’s problem.
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 phrasing is intentionally wide. It does not, by itself, transfer ownership of the underlying money or content. It governs access. Keeping that distinction straight is half the battle, because clients often assume that controlling the login is the same as owning the asset. It usually is not.
In practice, the digital assets we plan for in a Florida estate fall into a few recognizable buckets:
- Financial accounts with an online face: bank logins, brokerage and retirement portals, cryptocurrency wallets and exchange accounts, and payment apps like PayPal, Venmo, or Zelle that may hold a balance.
- Communication and identity accounts: email, which is often the master key because nearly every other account resets through it, plus phone carrier accounts and password managers.
- Sentimental and content accounts: cloud photo libraries, social media profiles, and personal blogs or websites.
- Revenue-producing digital property: domain names, monetized YouTube or other creator channels, e-commerce stores, online course platforms, and loyalty or airline mileage programs with real cash value.
- Devices themselves: the phones, laptops, and external drives that store local copies of all of the above.
Notice that some of these have genuine financial value and some are purely sentimental. Both matter, and they are handled differently. A cryptocurrency wallet is an asset of the estate. A spouse’s voicemail recordings are not, but try telling a grieving widow they are any less important.
The Florida Fiduciary Access to Digital Assets Act, in Plain English
Chapter 740 sets up an order of priority that determines who controls access to a digital account after death or incapacity. Understanding that order tells you exactly where to put your instructions so they actually stick.
The Three-Tier Priority System
- The online tool offered by the company. If a provider gives users an in-app way to name who can access the account after death, and the user uses it, that choice generally controls. Examples include Google’s Inactive Account Manager and Apple’s Legacy Contact. These tools override conflicting instructions in your will, so they are powerful and worth setting up deliberately.
- Your estate planning documents. If you did not use a provider tool, the directions in your will, trust, or durable power of attorney control. This is the layer most clients can actually do something about, and it is where good drafting earns its keep.
- The provider’s terms of service. If you left no instruction anywhere, the company’s terms-of-service agreement governs by default. That is the worst outcome, because terms of service are written to protect the platform, not your family, and many of them prohibit transferring an account at all.
The lesson is simple. Silence hands the decision to a Silicon Valley contract your spouse never read. A modern Florida estate plan should affirmatively authorize fiduciary access so your documents land in tier two rather than defaulting to tier three.
Access Without Drowning a Fiduciary in Private Content
Chapter 740 also draws a line between the catalogue of electronic communications and the content of those communications. A fiduciary may more readily get a list of who you emailed and when than the actual text of private messages, unless you have specifically consented to content disclosure. When we draft, we make a deliberate choice about how far that consent should reach, balancing administrative need against the decedent’s privacy. There is no one right answer; there is the right answer for your family.
Why Surviving Spouses Have a Particular Stake Here
This site focuses on the rights of surviving spouses, and digital assets intersect with those rights in a way most people never anticipate. Florida gives a surviving spouse the right to an elective share equal to thirty percent of the elective estate under Florida Statute § 732.2035. The elective estate is deliberately broad. It reaches well beyond the probate estate to capture certain non-probate transfers, jointly held property, revocable trust assets, and more, so that a spouse cannot be quietly disinherited through paperwork maneuvers.
Digital assets complicate this in two directions.
First, valuation. You cannot value what you cannot find. If a deceased spouse held meaningful wealth in a self-custodied cryptocurrency wallet or a brokerage account that only sent statements by email, the surviving spouse and the personal representative need access just to determine what the elective estate contains. An asset that is invisible is an asset that is easy to undercount, and an undercounted elective estate shortchanges the spouse.
Second, control during administration. A surviving spouse who is also serving as personal representative needs lawful authority to reach those accounts. Without Chapter 740 authorization in the underlying documents, the spouse may have to go back to the probate court or fight a custodian’s legal department for permission to do the very job the law already assigned them.
The elective share is also time-sensitive. The election generally must be made within six months after service of the notice of administration, or within two years of the date of death, whichever comes first. A spouse who burns those months locked out of the decedent’s accounts, unable to even quantify what is at stake, is fighting the clock and the technology at the same time. If you are a surviving spouse trying to understand your rights right now, the elective share is one of the first things to evaluate, and our overview of Florida probate explains where it fits in the broader process.
Building Digital Assets Into Each Estate Planning Document
Digital access is not a single clause you drop in one place. It threads through the whole plan, because different documents control at different moments.
In Your Will and Trust
Your last will and testament should expressly grant your personal representative authority to access, manage, distribute, and where appropriate terminate your digital assets, with the content-disclosure consent calibrated the way you want it. If you use a revocable living trust, the trustee provisions need parallel language, because assets and accounts titled in the trust are administered by the trustee, not the personal representative. A mismatch between the two documents is a common drafting gap that surfaces at the worst possible time.
In Your Durable Power of Attorney
The will only operates at death. Incapacity is the other half of the problem, and frankly the more frequent one. A Florida durable power of attorney should authorize your agent to access digital assets while you are alive but unable to manage your own affairs. Florida’s power-of-attorney statute requires that certain significant powers be specifically enumerated and separately initialed, so digital-asset authority belongs there in clear terms rather than buried in a general grant. Estate planning that combines lifetime and after-death protection is the heart of what a Florida estate planning attorney builds for clients.
In a Standalone Digital Asset Inventory
Legal authority is worthless if the fiduciary cannot find the accounts. We pair the documents with a separate, regularly updated inventory that lists the accounts and where the credentials live. Crucially, that inventory should describe where to find access, ideally a reputable password manager, rather than listing raw passwords inside a document that becomes a public court record once it is filed in probate. Never put live passwords in your will.
Cryptocurrency and Other Self-Custodied Assets
Crypto deserves its own paragraph because it breaks the usual assumptions. With a self-custodied wallet, there is no customer service line, no provider to subpoena, and no password reset. If the private keys or seed phrase are lost, the asset is gone permanently, full stop. I have seen six-figure holdings effectively vaporize because no one but the decedent knew the recovery phrase, and Chapter 740 cannot conjure a key that does not exist.
For these holdings, planning is mechanical, not just legal. Document the existence and approximate value, store the recovery information securely and redundantly, and leave clear, sober instructions for a fiduciary who may not be technically sophisticated. The goal is for a competent personal representative to recover the asset without needing to be a programmer.
Coordinating With Asset Protection and Long-Term Care Planning
Digital assets rarely live in isolation from the rest of a plan. Online financial accounts and crypto holdings are countable resources for long-term care and Medicaid analysis, which means they interact with planning tools you may already be using. Families weighing those moves often look at how an irrevocable strategy like a Medicaid asset protection trust fits alongside the rest of the estate, and the same coordination principles apply in Florida even though the specific rules differ by state. When digital assets are titled into a trust, the trust’s access provisions, not the will’s, do the work.
When to Bring in Counsel
Generic online forms tend to treat digital assets as an afterthought, if they mention them at all. The intersection of Chapter 740, the elective share, the power-of-attorney specificity rules, and provider terms of service is exactly the kind of overlap where boilerplate fails quietly. Experienced estate and elder law counsel can make sure the authority you grant is enforceable, the privacy line is drawn where you want it, and a surviving spouse is not left guessing during the months that the elective-share clock is running. If you want to review how your current documents handle digital access, the simplest next step is to schedule a consultation and bring a rough list of your online accounts.
The Bottom Line
Your digital life is part of your estate whether you plan for it or not. The only question is whether your fiduciary inherits clear authority and a usable roadmap, or a wall of password prompts and a default contract written by the platform. For Florida families, and especially for surviving spouses who must value and reach these assets under a strict deadline, a few well-drafted provisions today prevent a great deal of expense and heartache later.
Frequently Asked Questions
Can my spouse access my online accounts in Florida after I die?
Only if you have authorized it. Under Florida’s Fiduciary Access to Digital Assets Act (Chapter 740), access is controlled first by any online tool the provider offers (such as Apple’s Legacy Contact or Google’s Inactive Account Manager), then by your will, trust, or power of attorney, and finally by the provider’s terms of service. If you leave no instruction, the platform’s contract decides, and many providers prohibit transferring an account. Authorizing access in your estate documents is the reliable fix.
What is the Florida Fiduciary Access to Digital Assets Act?
It is Chapter 740 of the Florida Statutes, effective July 1, 2016. It gives fiduciaries, including personal representatives, trustees, agents under a power of attorney, and guardians, a legal framework to access and manage a person’s digital assets. It also distinguishes between the catalogue of electronic communications and their actual content, with greater consent required to disclose content.
How do digital assets affect a surviving spouse's elective share in Florida?
A surviving spouse is entitled to thirty percent of the broadly defined elective estate under Florida Statute § 732.2035. Digital financial assets, like brokerage accounts or cryptocurrency, can be part of that estate but are easy to overlook if no one can access them. Because the election must generally be made within six months of the notice of administration or two years of death, whichever is earlier, being locked out of accounts can jeopardize a spouse’s rights.
Should I put my passwords in my will?
No. A will typically becomes a public court record during probate, so listing live passwords there exposes them. Instead, grant your fiduciary digital-asset authority in the will, trust, and power of attorney, and keep the actual credentials in a secure location such as a reputable password manager, referenced by a separate, regularly updated inventory.
What happens to cryptocurrency if I do not plan for it?
Self-custodied cryptocurrency can be lost permanently if no one knows the private keys or recovery seed phrase, because there is no provider to reset access. Chapter 740 cannot recover a key that does not exist. You should document the holding’s existence and approximate value and store recovery information securely and redundantly so a fiduciary can reach it.
For more on our Florida practice, see our overview of estate planning in Boca Raton. Morgan Legal Group's affiliated New York office also handles Medicaid asset protection trusts.