Digital Inheritance: The Assets the Law Still Doesn't Know How to Pass On

When a partner or executive dies, the company and the family usually know exactly what to do with the real estate, the equity stakes and the bank account. But what about the cryptocurrency wallet he kept in his own name to diversify investments, the commercial Instagram profile that generated advertising revenue, the domain registered for a new project, the files saved in the cloud with contracts and strategic spreadsheets, or the airline miles accumulated on business trips? This kind of asset, increasingly relevant to the personal balance sheet of entrepreneurs and professionals, has no clear treatment under Brazilian law, and that has been generating court disputes, loss of assets and embarrassing situations for heirs.

The 2002 Civil Code was drafted at a time when smartphones did not exist and the internet was still in its infancy in Brazil. More than two decades later, a good part of the value a person builds over a lifetime, including professional value, is stored on digital platforms, encrypted wallets and accounts that do not fit neatly into the traditional categories of movable or immovable property. For business owners, the problem is not merely philosophical. It involves real money, business continuity and, often, trade secrets that die along with whoever kept them.

What Brazilian law says, and what it simply does not address

Neither the Civil Code, nor the Brazilian Internet Civil Framework (Marco Civil da Internet), nor the General Data Protection Law deals specifically with the succession of digital assets. There are bills moving through Congress, such as PL 4/25, currently under discussion in the Senate, which proposes adding to the Civil Code a definition of digital assets as the deceased's intangible estate, covering passwords, financial data, social media profiles, accounts, files and any content of economic nature stored in a virtual environment. The proposal also tries to balance two interests that frequently clash: the heirs' property rights and the right to privacy of the deceased and of third parties who exchanged messages or shared information with that person while alive.

While the law lags behind, the courts have been deciding case by case, with results that are not always consistent. Brazil's Superior Court of Justice has already ruled that airline miles accumulated without monetary consideration do not form part of the estate, since they are a personal benefit granted by the loyalty program rather than a transferable asset. The São Paulo State Court of Appeals, on the other hand, when ruling on a mother's request to access her deceased daughter's Facebook profile, upheld the platform's deletion of the account, finding that the content was of an existential nature and that the terms of use the user had accepted during her lifetime were valid. In Germany, by contrast, the country's highest civil court recognized the right of a teenager's parents to fully access their daughter's profile, applying the principle of universal succession, equivalent to our principle of saisine, under which the estate passes automatically to the heirs at the moment of death, with no need for any prior formality. This contrast shows that, in the absence of specific legislation, the fate of digital assets can vary depending on a judge's interpretation and each platform's terms of use, which is a clear source of legal uncertainty for anyone planning to leave an organized legacy.

Not all digital assets are alike: separating property from privacy

For the business owner thinking about organizing their succession, the first practical step is understanding that digital assets do not form a single category. Legal scholars usually divide them into three groups. Patrimonial assets have direct, measurable economic value, such as crypto assets, accounts with digital brokers, commercial domains, miles with market value, software licenses and monetized social media profiles. Existential assets relate to personality and privacy, such as personal emails, private conversations, photographs and digital diaries, whose transferability to heirs is controversial precisely because it involves rights that are, in principle, strictly personal and extinguish upon death. Between these two extremes sit hybrid assets, which combine economic value and personal content at the same time, such as the profile of an entrepreneur who is also an influencer, generating advertising revenue while also holding records of their private life.

This distinction is not an academic exercise. In practice, it determines whether an heir can simply take control of an account or needs judicial authorization, whether the platform has the right to delete the content or is obligated to preserve it, and whether family members accessing certain material could amount to a violation of the privacy of the deceased or of third parties who exchanged messages with them. Cases of influencers and artists who passed away and whose profiles kept generating revenue for the family, with posthumous product and content releases, illustrate well how thin the line between the patrimonial and the existential can be, and why it demands extra caution in planning.

Crypto assets: the most sensitive point of digital succession planning

Among digital assets, crypto assets deserve special attention from anyone managing a company or significant personal wealth. Brazil's federal tax authority (Receita Federal) already defines them, under Normative Instruction RFB 1,888/2019, as a digital representation of value traded electronically using cryptography and distributed ledger technology. The succession problem arises from how these assets are held. When kept with brokers, or exchanges, recovery by heirs tends to follow procedures similar to those for other financial investments, by proving legitimacy to the platform. In self-custody, however, when the holder alone keeps the private keys to their digital wallet, the risk is different: without those keys, there is no possible recovery, neither through the courts nor through any administrative procedure. Unlike a bank password, a private key is a cryptographic element that, once lost, makes the asset inaccessible forever. This is one of the reasons why a considerable share of the bitcoin in circulation worldwide is today unrecoverable, locked in wallets whose keys were lost along with the death or forgetfulness of their owners.

For companies that hold part of their treasury or investments in crypto assets, or for partners with significant positions in their own name, it is worth considering specific tools: multi-signature wallets, which require more than one key to authorize transactions and allow control to be distributed among trusted people; formally designating beneficiaries directly with the brokers, when the platform offers that feature; and including detailed technical instructions in a sealed will (testamento cerrado), a form of will that preserves the confidentiality of sensitive information until the estate is opened, unlike a public will, which is inherently more exposed.

The privacy dilemma and platforms' standard-form contracts

Another point that deserves a business owner's attention is that, by accepting the terms of use of services like iCloud, Google, Instagram or Facebook, the user is signing a standard-form contract that already determines, in advance, what will happen to their data after death, often without the person having read or understood that clause. Apple, for instance, states in its terms that, upon presentation of a death certificate, the account may be closed and all stored content deleted, with no window for heirs to retrieve the material. Google, by contrast, lets users set up in advance what happens to their data, naming trusted contacts or opting for automatic deletion after a period of inactivity. This disparity between platforms reinforces that digital inheritance cannot be left to chance: what a tech company does automatically may not match the wishes of the account holder, nor the interests of their successors, whether family members or business partners who depend on that material to keep a project running.

Tax impacts and listing these assets in probate proceedings

From a tax standpoint, digital assets with economic value, including cryptocurrencies and significant commercial domains, are subject to ITCMD, the state tax on inheritance and gift transfers. The practical difficulty lies in valuation: crypto assets are volatile and have no uniform price across exchanges, which can lead to disputes over which price reference to use at the time the estate is opened. In addition, the estate administrator (inventariante) has a duty to investigate the existence of these assets, which is not always simple when the deceased left no organized record. Income tax returns, brokerage statements and even the Infojud system, which allows requests to the federal tax authority for information on reported crypto asset transactions, have been used as support tools in this asset investigation, but nothing replaces a digital inventory prepared by the asset holder during their lifetime.

What business owners can do right now

Given the legislative gap, the practical recommendation drawn from the experience of those who handle estate succession is clear: do not wait for the law to catch up in order to organize what is already a reality in the assets of anyone with an active digital life. This includes precisely mapping which accounts, profiles, digital investments and files hold economic or strategic value for the business, defining through a will, a post-mortem mandate or other contractual instruments who will have access to each type of asset, and, for more substantial digital holdings, considering the creation of specific corporate structures that make both lifetime management and post-death transfer easier. For business partners, it is also worth reviewing shareholder agreements and articles of association so they expressly address what happens to corporate profiles, domains and access credentials if one of the partners passes away.

The absence of specific regulation in Brazil does not mean the issue should be handled haphazardly. On the contrary, the technical complexity of crypto assets, the wide variation in rules between platforms, and the constant tension between the heirs' property rights and the privacy of the deceased make digital succession planning a front that requires qualified legal guidance, ideally coordinated with the other asset protection and corporate structuring tools a company or business owner has already put in place. Leaving this asset without a defined destination means giving up part of one's own legacy, and exposing family members or business partners to disputes that, with a bit of planning, simply would not need to exist.