When we are gone, but our data is not: the cultural and Jurisdictional Crisis of post-mortem data governance in the age of AI

Death no longer ends a person’s digital existence. Generative AI can now take what someone leaves behind, such as recorded voices, old posts, and years of accumulated data, and turn it into a synthetic clone that speaks and acts on its own. The law has not caught up. Grieving practices are being reshaped without public debate, corporate Terms of Service have quietly become the de facto governing rules, and hard questions about personality rights after death remain unanswered. Courts and legislatures still reach for probate, intellectual property, or privacy doctrine, but these bodies of law were designed for physical property. In practice, they serve celebrities with commercial estates and leave everyone else’s digital remains exposed to monetisation and misuse. This paper argues that the debate has been framed incorrectly. The question that matters is not who owns the data of the dead, but what obligations attach to a synthetic entity built from a human life. The paper develops the Algorithmic Filiation Doctrine as an answer: a legal tether binding any synthetic identity substantially derived from a person’s data to that person, given effect through a Post-Mortem Right to Personality and a Filiation Testament. On this footing, the dead retain a measure of dignity that current law denies them.