The Legal Nature of Successional Digital Assets: The Necessity of Recognizing the "Digital Fiduciary" in Civil Law

Abstract

Modern wealth is rapidly dematerializing into digital assets like cryptocurrencies and social media accounts, creating a profound disconnect between "lex digitalis" and traditional inheritance laws rooted in Roman principles. This gap results in a "cryptographic impasse," where mathematical locks can override judicial authority, as demonstrated by the QuadrigaCX case where $190 million became permanently inaccessible due to a missing private key. While cryptocurrencies are generally treated as intangible movable property in the EU and Romania, social media accounts are often governed by intuitu personae contracts that mandate account deletion upon death, depriving heirs of both financial value and personal memories. Jurisprudential models vary, with German courts treating social media accounts as inheritable "digital diaries," while U.S. law under RUFADAA provides fiduciaries limited access based on explicit consent. In Romania, the lack of established jurisprudence for "digital family memorabilia" creates uncertainty regarding access to personal data like iCloud photos, which are often strictly non-transferable under service provider terms. Currently, unless a user proactively utilizes features like Apple's "Digital Legacy," legal heirs face significant barriers in reclaiming digital estates. To resolve these challenges, the author proposes recognizing the "digital fiduciary" and enacting mandatory legislative clauses that align digital service terms with civil code provisions on "family memories." Implementing a system where users nominatively select data for transmission or destruction would balance the deceased's right to privacy with the heirs' interest in preserving a legacy. Without such reforms, future generations risk losing both the financial wealth locked in blockchains and the emotional history of the digital era.