Digital legacy: heirs are allowed to actively use social media accounts  

Social media accounts, such as Instagram accounts, are a very personal matter. This raises the question of what the heirs of an account can and cannot do with it. The Higher Regional Court of Oldenburg has now ruled that heirs may also actively use a social media account. (Higher Regional Court of Oldenburg, judgment of 30 December 2024, case reference: 13 U 116/23).

Digital legacy: inheritance law and social media

When a person dies, their legacy now includes a lot of ‘digital’ material. This so-called digital legacy encompasses all electronically available data, contractual relationships, and assets, including:

• Cryptocurrencies
• NFTs
• Websites and domains
• Offline data such as documents, images, and videos
• Social network accounts, such as on Instagram, Facebook or LinkedIn.

According to § 1922 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the law of succession does not make a legal distinction between ‘analogue’ and ‘digital’ estates. A person’s entire legacy, including their digital legacy, passes to the heirs or community of heirs upon the death of the individual. This principle was affirmed by the Federal Court of Justice in a landmark ruling in 2018. The question of who inherits the digital estate is determined either by law (intestate succession) or by the will of the deceased.

You can find out more about this here: https://www.acconsis.de/en/services-2/digital-legacy/

Are heirs allowed to use social media accounts?

The Federal Court of Justice has already clarified that a social media account is part of the estate. However, the question of whether heirs are also allowed to actively use an inherited social media account has not yet been clarified by the highest court.

However, the question may well arise, especially in the case of accounts belonging to successful influencers or celebrities, whether heirs – such as spouses or children – are allowed to continue operating these accounts.

Dispute over the Instagram account of a deceased DSDS star

The Higher Regional Court (OLG) Oldenburg had to clarify such a case in the case of the widow of a deceased celebrity for his Instagram account.

It was about the account of a deceased winner of the casting show ‘Deutschland sucht den Superstar’ (DSDS, ‘Germany’s Next Superstar’), who died two years after participating in the show. The widow inherited the account and initially continued to use it actively until it was set to the so-called memorial state by the Meta group (operator of the Instagram platform), and no one could log in and actively use the account anymore.

The widow took legal action against this.

Not just reading: heirs may actively use the account

In the first instance, she was only partially vindicated: the Oldenburg District Court only granted her passive reading rights.

In the second instance, however, the widow was fully vindicated. The Oldenburg Higher Regional Court assumed that heirs may not just passively use an inherited social media account. The heirs must be granted full access to the account – with all the passive and active usage options that the account holder had during their lifetime.

The court’s reasoning for this is as simple as it is plausible: heirs, as universal successors, assume exactly the legal position of the deceased person. Therefore, heirs must be able to use inherited accounts in exactly the same way as the deceased person could.

The fact that the use of a social media account is not only possible in a highly personal way has already been clarified by the Federal Court of Justice in other cases. Furthermore, the contractual obligations of the platform operator are not configured in such a ‘personal’ way that Meta can and must fulfil its obligation only vis-à-vis the original account holder.

Assessment of the case

This judgement is a milestone in the case law on digital estates in the area of social media: Until now, there was simply no relevant case law on the aspect of actively using an inherited social media account. This has now changed.

However, the appeal has been allowed. It therefore remains to be seen (2/2025) whether the Federal Court of Justice will decide on this matter and what a supreme court ruling would be.