The question may seem uncomfortable, but it's becoming increasingly urgent: what happens to your digital assets after you die? Your photos on iCloud, your Instagram profile, your cryptocurrency holdings on exchanges , your loyalty program points, your WhatsApp conversations: does it all disappear? Is it locked? Can your heirs access it?
For a long time, Brazilian law simply had no answer to these questions. The 2002 Civil Code was drafted in a context where "digital assets" were not even a recognized legal category.
The practical result is that, even today, families face concrete obstacles in accessing the accounts of deceased individuals, platforms reject requests from heirs citing privacy and usage policies, and probate proceedings drag on without knowing for sure how to classify (or if it is possible to divide) assets that exist only in a virtual environment.
This scenario, however, is undergoing rapid transformation. And understanding this change is a requirement of contemporary legal practice.
What are digital assets for inheritance purposes?
Legal doctrine and case law have been constructing, albeit unsystematically, a concept of digital assets. Broadly speaking, it refers to the set of intangible assets stored or accumulated in a virtual environment that have appreciable economic value, or at least relevant value for the personal sphere of the owner.
This distinction between economic value and personal value is fundamental, because there are digital assets that have clear patrimonial content, such as cryptocurrencies, NFTs, monetized accounts on streaming platforms, online stores, registered domains, balances in digital wallets, and points in reward programs.
There are other assets, however, that are predominantly of a highly personal nature, such as private conversations, emails, photographic records of intimate use, and browsing history.
And there is also a hybrid category, where the economic and the highly personal intertwine, such as the profile of a digital influencer with advertising revenue, or the channel of a content creator with thousands of subscribers.
This categorization is important because the legal treatment of each group is distinct. Assets with patrimonial content tend to form part of the estate and follow the general rules of succession. Assets of a highly personal nature, on the other hand, are not inherently transferable, and their eventual protection by the heirs occurs through the protection of the deceased's personality rights, not through succession itself.
The current state of Brazilian law
The current Civil Code does not contain a single provision regarding digital inheritance. This gap has been filled piecemeal by legal scholars, pronouncements from Civil Law Conferences, and, more recently, by the jurisprudence of the Superior Court of Justice.
At the 9th Civil Law Conference, held in 2022, Statement 687 was approved, which expressly recognizes that digital assets can be included in the estate of the deceased owner in legitimate succession and allows their disposal by will or codicil.
In terms of case law, the most significant advancement occurred in 2025, when the 3rd Panel of the Superior Court of Justice (STJ) directly addressed the issue in Special Appeal No. 2.124.424/SP, under the rapporteurship of Justice Nancy Andrighi.
The court created the figure of the digital executor , a professional with technical expertise, appointed by the probate court with the specific function of accessing and mapping the deceased's digital assets, preparing a detailed report, and submitting the classification of each asset to the judge for a decision on its transferability.
Unlike the traditional executor under the CPC (Brazilian Code of Civil Procedure), the digital executor does not follow the order of preference in article 617 and is subject to strict confidentiality obligations, and may be held civilly and criminally liable for any violation of confidentiality.
The decision is relevant because the absence of legislative regulation created a vacuum that the Judiciary had to fill on a case-by-case basis, resulting in inevitable legal uncertainty for the parties involved.
The reform of the Civil Code and the new proposals
Bill 4/2025, which deals with the reform of the Civil Code and is currently being processed by the Temporary Committee of the Federal Senate, proposes the introduction of specific articles on digital inheritance.
The articles represent a structural change that, if approved, will represent the biggest update to Brazilian inheritance law in decades with regard to intangible assets.
The proposal inserts article 1.791-A into the Civil Code, expressly defining that the deceased's digital assets of appreciable economic value form part of their estate.
Proposed wording for article 1.791-A of the Civil Code:
"Article 1.791-A. The deceased's digital assets, of appreciable economic value, form part of his estate."
§ 1. Digital assets are understood to be the intangible assets of the deceased, including, among others, passwords, financial data, social media profiles, accounts, chat logs, videos and photos, files of other kinds, points in reward or incentive programs, and any content of an economic nature, stored or accumulated in a virtual environment, owned by the testator.
§ 2. Personality rights and the civil effectiveness of rights that extend beyond death and do not have economic content, such as privacy, intimacy, image, name, honor, personal data, among others, shall observe the provisions of special law and Chapter II of Title I of Book I of the General Part, as well as the Book of Digital Civil Law.
§ 3° Any contractual clauses aimed at restricting a person's powers to dispose of their own data are null and void, except for those which, by their nature, structure and function, have limits on use, enjoyment or disposal.
The bill also carefully separates digital assets of an economic nature from personality rights that extend beyond death (such as privacy, intimacy, image, name, and personal data), which will follow their own rules and, as a rule, will not be subject to voluntary disposal.
Special attention should be paid to the provision of article 1.791-B, which prohibits heirs from accessing the private messages of the deceased stored in a virtual environment, except by express provision of last will and testament or judicial authorization for a specific purpose.
Proposed wording for article 1.791-B of the Civil Code:
"Article 1.791-B. Unless expressly provided otherwise in a last will and testament and provided the confidentiality of communications is preserved, the private messages of the deceased disseminated or stored in a virtual environment may not be accessed by their heirs."
§ 1 The sharing of passwords, or other forms of access to personal accounts, shall be equated to negotiated or last will and testament provisions, for the purposes of access by the successors of the deceased.
§ 2. By judicial authorization, the heir may have access to the private messages of the deceased, when demonstrating that, due to their content, he or she has a personal or economic interest in knowing them.
The rule represents a deliberate choice to protect the privacy of the deceased at the expense of the financial interests of the heirs, a decision that will certainly generate doctrinal debate and challenge the interpretation of the courts.
Why does a lawyer need to master this topic?
Digital inheritance is already a reality in probate proceedings.
It is not uncommon for a lawyer specializing in family law or inheritance law to encounter clients who need to access the digital bank accounts of a deceased spouse, recover cryptocurrencies without a documented private key, or determine the fate of a professional profile with commercial value.
Furthermore, the topic transcends litigation. There is growing scope for advisory and preventative action, such as advising clients on how to organize an informal "digital will," drafting specific clauses in traditional wills, estate planning that includes digital assets, and advising technology companies on how to structure policies for handling deceased user accounts in accordance with what Brazilian law is moving towards requiring.
Those who don't prepare now will certainly be late!
The postgraduate program in Digital Law, Data and Artificial Intelligence at IDP
IDP offers a specific postgraduate program in Digital Law, Data, and Artificial Intelligence, structured to empower professionals to face precisely these challenges.
The course covers everything from the fundamentals of internet regulation and the LGPD (Brazilian General Data Protection Law) to cutting-edge topics such as artificial intelligence regulation, data protection in the public sector, the civil liability of platforms, and the ECA Digital (Brazilian Statute for Children and Adolescents).
The faculty is composed of specialists who work directly in the construction of this legal field, among them Professor Laura Schertel, co-author of the draft of the LGPD (Brazilian General Data Protection Law) and director of the Center for Law, Internet and Society at IDP, and Professor Tainá Junquilho, PhD in Law and researcher specializing in artificial intelligence.
Classes are 100% online and live, held every two weeks, allowing students to combine their studies with the routine of a functioning law firm. Students have access to the three largest virtual legal libraries in Brazil, including the collection of the Revista dos Tribunais (Court Journal).
For professionals already working (or intending to work) in family law, inheritance law, estate planning, or business consulting, specialized training in digital law is no longer a differentiator but a requirement.
The field is under construction, and those who participate in this construction from now on will have a considerable advantage over those who wait for the complete consolidation of the regulations before updating themselves.
