The New Digital Businesses of Individuals
It is unquestionable that social media has impacted the business world. The evolution of the new — yet already outdated — profession of “blogger” is reflected in digital businesses such as YouTube, Instagram, and TikTok, within the so-called “creator economy,” often found in international and billion-dollar profiles.
According to the 2023 report by Influencer Marketing Hub, the global influencer market grew and was worth more than US$21 billion last year, compared to US$16.4 billion in 2022. This growth has been accompanied by the evolution and expansion of influencer marketing platforms, which have become crucial tools for connecting brands with the right content creators.
Moreover, there are numerous online profiles with millions of followers whose owners are not necessarily known. These cases are also noteworthy, as such profiles — whether focused on comedy, travel, specialized sectors, and others — significantly contribute to digital marketing.
In Brazil, there is still no specific legislation on digital inheritance, but it is included in the draft reform of the Civil Code submitted to the Senate in April/2024.
In this brief article, we will address this new form of asset transmission and the tax challenges it presents in Brazil.
Digital Inheritance and the Civil Code Reform
The draft Civil Code reform submitted to the Senate, in Chapter V, defines digital assets and the hereditary transmission of digital assets, among other topics.
The definition of Digital Assets is as follows in the bill presented:
Art xx. Digital assets are considered to be the set of intangible and immaterial assets, with economic, personal, or cultural value, belonging to a person or entity and existing in digital format.
Sole paragraph. The provisions of this article include, but are not limited to, financial data, passwords, social media accounts, cryptocurrency assets, non-fungible tokens or similar assets, airline mileage, gaming or cyber-game accounts, digital content such as photos, videos, texts, or any other digital assets stored in a virtual environment.
Specifically regarding digital inheritance, the draft states:
Art.xx The hereditary transmission of data and information contained in any internet application, as well as of passwords or access codes, may be regulated by a will.
§1. The sharing of passwords or other forms of access to personal accounts shall be equated to express contractual or testamentary provisions, for the purpose of granting successor access, provided that such provisions are duly proven.
§2. Digital assets of an economic nature, whether pure or hybrid — the latter being those related to personal characteristics of the natural or legal person — are part of the inheritance.
§3. Legal successors may request the deletion of the account or its conversion into a memorial if the account holder’s will is not known.
The legislation thus seeks to encompass not only digital businesses that generate income but also the digital assets of individuals who do not use the virtual world as a business, making the regulation broad.
However, because the law is often behind business practices and real-world developments, the transmission of digital assets has naturally already been addressed in various succession cases. To our knowledge, digital companies have not objected to the transfer of such assets when the appropriate documentation is presented.
Nevertheless, it is worth highlighting two cases brought before the São Paulo State Court, in which the court reached different conclusions as well as a Superior Court of Justice (STJ) case where a digital estate executor was nominated.
Case Law from the São Paulo State Court
Case 1 – 2021
In 2021, according to the judgment (Appeal 1119688-66.2019.8.26.0100; Justice Francisco Casconi; 31st Chamber of Private Law; Central Civil Court – 12th Civil Court; Trial Date: 03/09/2021; Registration Date: 03/11/2021), the 31st Chamber held that: “The complaint is based on the exclusion of the appellant’s daughter’s Facebook profile after the daughter’s death. The plaintiff claims she regularly accessed the profile using the deceased’s username and password, but that access was suddenly interrupted without warning or explanation. She requested reinstatement of the status quo or access to the account data, as well as information on the reasons for the deletion and compensation for moral damages.”
Based on the platform’s terms of use, the court emphasized that: “Users have two options in case of death: they may choose to delete their account or request that the profile be maintained, with or without appointing a legacy contact, in which case the account becomes a memorial. Thus, even if the user does not opt for deletion, the other option is the account being a memoir, with limited functions and no direct access to the account”.
The court also noted the absence of legislation on digital inheritance in Brazil: “There is no specific legislation on digital inheritance in Brazilian law. Neither the Internet Civil Framework (Law 12.965/2014) nor the General Data Protection Law expressly addresses the issue.”
Thus, the decision went against the mother’s request: “When available, the choices made by individuals regarding their accounts must prevail, whether made through the platform or in another legitimate legal instrument. In the absence of such expression, the site’s terms of use prevail, provided they are consistent with the legal system.”
Case 2 – 2024
In 2024, the 3rd Chamber of Private Law of the São Paulo State Court (Appeal 1017379-58.2022.8.26.0068; Justice Carlos Alberto de Salles; Trial Date: 04/26/2024) ruled, in a case involving a judicial order to transfer a deceased daughter’s Apple ID, that: “Despite the lack of specific legislation on digital inheritance, the digital assets of the deceased person — considering their emotional and economic content — may form part of the estate and be subject to succession.”
The court noted: “There is no justification to prevent the sole heir from accessing the daughter’s memories, especially since there is no evidence that this access would violate the deceased’s personality rights.”
It also highlighted the absence of resistance from Apple and referenced Judicial Council Enunciation 687:”Digital assets may be included in the estate of the deceased and may also be disposed of through a will or codicil.”
Both cases, though factually different, make clear that the transfer of digital assets in succession is already a reality — and it raises important tax implications.
Superior Court of Justice - 2025
The Third Chamber of the Superior Court of Justice (STJ) in Appeal 2.124.424 ruled that if the deceased did not share passwords with the heirs, the search for information on assets and digital property in their electronic devices may be carried out through a procedural incident to be initiated alongside the probate proceedings, with the support of a specialized professional – the digital executor.
Tax Implications in Brazil
In Brazil, the transfer of any assets via inheritance is subject to the ITCMD (Tax on Inheritance and Donation) and possibly the IRPF (Individual Income Tax).
Tax on Inheritance and Donation
ITCMD is levied on inheritance and donation, as provided in Article 155, I, of the Brazilian Constitution. It is a state-level tax, and its taxable base is the market value of the asset at the time of succession.
In São Paulo, the ITCMD rate is fixed at 4%. In Rio de Janeiro, it ranges from 4% to 8%. With the tax reform, states with fixed rates are expected to increase them to the current maximum of 8%, and there is a proposal in the Senate to raise the top rate to 16%.
Individual Income Tax
IRPF, provided in Article 153, III of the Constitution, is federal level tax. Article 23 of Law 9.532/1997 gives heirs two options:
- Declare the inherited asset using the deceased's original acquisition cost; or
- Update it to market value, in which case the difference triggers capital gains tax.
There is ongoing debate on whether IRPF should apply to inherited assets, since ITCMD already taxes the transfer and because inheritance does not generate new economic availability for the estate itself.
In recent rulings, both chambers of the Brazilian Supreme Court ruled against the charge of IRPF on inherited assets, noting that such taxation would create unlawful double taxation with ITCMD.
Additional Challenges for Digital Assets
Digital inheritance raises unique valuation and tax issues:
- How much is a Facebook, YouTube, or Instagram account worth?
- A quick search suggests a profile with 50,000–100,000 followers could be worth around US$2,000 — but real valuation requires assessing commercial use, engagement, and other factors.
- Volatility of digital assets (e.g., cryptocurrencies) can complicate tax calculations and payment.
- Location of assets:When accounts are held by companies abroad, determining whether the asset is “located” in Brazil for ITCMD purposes becomes challenging.
Important questions arise:
- If the company has no presence in Brazil, does the asset remain taxable here?
- Does the IP address used to access the account matter?
- If the account is “situated” abroad, international tax treaties may apply, requiring examination to avoid double taxation.
Final Considerations
This article aimed to present the challenges — some new and others familiar — related to taxation in succession, particularly digital inheritance, which increasingly reflects our digital-centric world.
It is up to legal practitioners to address this evolving reality, which, as seen, is already firmly present in succession law.
https://www.jota.info/opiniao-e-analise/colunas/coluna-da-abdf/desafios-tributarios-da-heranca-digital