DIGITAL INHERITANCE AND THE RIGHT TO POST-MORTEM PRIVACY: A LEGAL ANALYSIS OF SUCCESSION LIMITS AND POSSIBILITIES

Abstract

The increasing digitalization of daily life has generated a vast collection of digital assets, including patrimonial, existential, and hybrid assets, whose destination after death represents a contemporary legal challenge. This article analyzes the issue of digital inheritance in Brazil, highlighting the existing normative gap in the national legal system, conceived under the logic of corporeal assets. Adopting the deductive method and bibliographic and documentary research, the study examines the inadequacy of the national normative framework to regulate the matter, wich results in the delegation of governance to the terms of service of digital platforms and fosters judicialization. The conflict between the fundamental right to inheritance of successors and the post-mortem protection of the deceased's personality rights is discussed. The treatment of cases in Brazilian jurisprudence is analyzed, marked by legal uncertainty and disparate decisions that resort to case-by-case balancing, contrasting it with comparative law solutions, such as the paradigmatic decision of the German Bundesgerichtshof, which applied the principle of universal succession, and legislation in Spain and the USA. It is concluded that, in the absence of specific law, the safest way to harmonize conflicting rights and respect the dignity of the de cujus is to promote private autonomy through succession planning, using the traditional will with specific clauses for the digital estate and, eventually, appointing a digital executor, as a way to mitigate uncertainty while awaiting necessary legislative updates.