In matters of inheritance, Article 659 of the Civil Code provides that the inheritance shall include all those assets, rights and obligations that are not extinguished after the death of the person.
The incessant digital revolution has led to the birth of a new concept increasingly settled and known, the digital will . To this effect, the Organic Law 3/2018, on the protection of personal data and guarantee of digital rights regulates in certain aspects the situation with the wording of Article 96 on the right to the digital will and access to its content. Thus, the increase in the use of new technologies, coupled with the ease of linking personal and digital data, have led to the emergence of digital heritage . According to the UNESCO Charter on the Preservation of Digital Heritage, it should be understood as the set of unique resources of knowledge and expression, encompassing cultural, educational, scientific or legal resources, including personal information and constituting a heritage to be protected and preserved.
Continuing along the main line, the use of new technologies has fostered the emergence of digital goods and services, including social networks, electronic communications and intangible goods such as cryptocurrencies.
As outlined above, all these assets are part of the inheritance estate and are fully transferable after death. Now, what are the peculiarities about inheritance with cryptocurrencies?
In the first place, it should be noted that there is currently no explicit legal regulation, which is why, in matters of inheritance, the provisions of Civil Law will have to be applied, thus applying Articles 657 and following of the legislation.
Secondly, the "problematic" of cryptocurrencies in matters of succession is centered on their very essence. That is, they are used through Blockchain technology, composed of non-centralized distributive networks to provide the system with sufficient security to prevent the transmission, access or publication of information. On the other hand, it is a digital asset that can be purchased and used to acquire goods and services. However, it is not a legal tender, being integrated as shares or securities in the event of an inventory of assets and forming part of the assets of the estate.
Thirdly, they are stored electronically (which is why we speak of digital heritage), so the heirs can easily be unaware of their contents.
Once the concepts and problems in inheritance matters have been determined, what are the appropriate means in inheritance matters regarding cryptocurrencies as assets that make up the estate?
Will. Understood as the last will of the deceased, the latter can provide for the distribution of all the assets at his disposal, including cryptocurrencies, as they are part of the assets of the estate. However, both the CNMV and the Bank of Spain have indicated that it is not mandatory to accept cryptocurrencies until they are converted into legal tender.
Will and deed. Although the will can establish the free distribution of assets, the interested party or testator could provide for access to cryptocurrencies in a public document to restrict access by some of the interested parties or successors in title, being able to appoint a digital executor in charge of management and access.
Summarizing the above, the answer to the question of inheriting cryptocurrencies must be understood in the affirmative, and the provisions of the civil legislation on inheritance and inheritance taxation must be followed.
