THE (IM)POSSIBILITY OF MORTIS CAUSA SUCCESSION OF DIGITAL ASSETS AND CONTENT

Résumé

This study analyzes the mortis causa succession of digital assets and content within the Portuguese legal system, taking into account the challenges arising from the increasing digitalization of contemporary society. Technological advancement and the widespread use of the internet have transformed the way individuals accumulate assets, which now include various digital goods such as social media accounts, email accounts, multimedia content, cryptocurrencies, loyalty programs, streaming platforms, and other digitally stored assets. In this context, the research seeks to understand whether digital assets should form part of the de cuius’s estate and under what conditions they may be transferred to heirs. The analysis is based on the distinction between patrimonial, existential, and hybrid digital assets. Patrimonial assets, due to their economic value, should be included in the estate and transferred to successors pursuant to Article 2025 of the Portuguese Civil Code and Article 62 of the Constitution of the Portuguese Republic. On the other hand, digital assets of an exclusively existential nature, directly related to personality rights, such as private messages, intimate photographs, and confidential communications, should not be transferred, as doing so could violate the privacy, honor, and dignity of the deceased and third parties. With regard to hybrid assets, which combine patrimonial and existential characteristics, the study advocates partial transmission, preserving elements of economic value while excluding content capable of affecting personality rights. The study highlights the absence of a specific legal framework governing digital assets, which requires the application and interpretation of traditional succession rules in light of fundamental rights and the Portuguese Charter of Human Rights in the Digital Age. It concludes that the succession of digital assets must be analyzed in a balanced manner, reconciling the right to property and inheritance with the protection of privacy, memory, and human dignity, thereby making evident the need for legislative development in this area.