After a person passes away, a decedent’s survivors oftentimes attempt to access the decedent’s electronic communications.  Whether motivated by mere curiosity or a desire to better understand the circumstances that led to a decedent’s death, decedents’ survivors have not had much success in accessing the content of decedents’ electronic communications since New York enacted digital assets legislation in 2016.  Recently, however, two Surrogate’s Courts have granted applications for access to the content of decedents’ electronic communications.  I now write to provide an update on when a court may grant access to the content of a decedent’s electronic communications.

Estates, Powers and Trusts Law (“EPTL”) Article 13-A codifies New York’s digital assets legislation.  In EPTL § 13-A-1, the term “content of electronic communication” is defined as “information concerning the substance or meaning of the communication” that: (a) “has been sent or received by a user”; (b) “is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public”; and (c) “is not readily accessible to the public” (EPTL § 13-A-1[e]).  Securing access to the content of a decedent’s electronic communications may be significant, as it may allow the decedent’s survivors to see the decedent’s emails, text messages, and iCloud account information (Matter of Coleman, 63 Misc3d 609, 614 [Sur Ct, Westchester County 2019]).

Where a deceased user has consented to disclosure of the content of the decedent’s electronic communications, the decedent’s survivors generally will find it easier to gain access to the content of the decedent’s electronic communications (EPTL § 13-A-3.1).  Even when a deceased user has not consented to disclosure of the content of his or her electronic communications, a court can order the custodian of a decedent’s digital accounts to provide “disclosure of the content of electronic communications” when such disclosure “is reasonably necessary for administration of” the decedent’s estate (id.).  Since at least 2017, Surrogate’s Courts generally have rejected applications to access the content of decedent’s electronic communications (Matter of Landis, File No. 2021-3647/C, 2025 WL 1378901, at *2 [Sur Ct, New York County May 6, 2025]; Matter of Serrano, 56 Misc3d 497, 499 [Sur Ct, New York County 2017]).

 In late-2025, however, two Surrogate’s Courts granted applications to access the content of decedents’ electronic communications.  In Matter of Delessio, based upon the petitioners’ allegations that disclosure of the content of the decedent’s electronic communications was reasonably necessary to the decedent’s estate’s administration and discovery in contested probate and trust proceedings, Acting Nassau County Surrogate Rhonda E. Fischer directed that Apple, Inc. and Optimum provide the preliminary executor of the decedent’s estate with “the contents of [the] decedent’s electronic communications” (Matter of Delessio, File No. 2024-433/D, Decision, dated Oct. 3, 2025 [Sur Ct, Nassau County]).  More recently, in Matter of Jennings, Suffolk County Surrogate Vincent J. Messina, Jr. granted a decedent’s parents’ application to access the content of their son’s email accounts, based upon the parents’ good faith belief that such access would assist them in identifying estate assets and, thus, was reasonably necessary to their administration of the decedent’s estate (Matter of Jennings, File No. 2024-2189/A, Decision, dated Dec. 19, 2025 [Sur Ct, Suffolk County]).  Delessio and Jennings may demonstrate that Surrogate’s Courts are more receptive to applications to obtain access to the content of decedents’ electronic communications than they previously were.  Indeed, as Delessio and Jennings show, even absent a decedent’s consent to access the content of his or her electronic communications, a decedent’s survivor may be able to secure such access by demonstrating that it is reasonably necessary to the administration of the decedent’s estate.