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Unclaimed Property Laws By State

Unclaimed property laws vary by state, but generally apply to a wide range of intangible assets, including money, financial accounts, and securities. It is expected that more states will follow in adopting the same or similar provisions. In addition, most states have a catchall provision for miscellaneous intangible personal property that may make an intangible asset subject to escheat.

Accordingly, even if a state does not have a specific statutory provision covering the escheat of virtual currencies, the state may take the position that cryptocurrencies fall within the catchall provision for miscellaneous intangible property subject to escheat.

In analyzing the applicability of unclaimed property laws to cryptocurrencies, it will first be necessary to determine what type of property the cryptocurrency is under applicable state law. Is the cryptocurrency comparable to money?

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Is it a commodity or security? Is it redeemable for cash?

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This is an important consideration because different dormancy periods may apply depending on the characterization of the property. A further complication is that the existence of a cryptocurrency may be governed by contractual terms established at the creation of the cryptocurrency and those terms can vary , with set terms and conditions affecting both the nature and location of the asset, including who can control the asset. Even when a cryptocurrency is deposited into an online entity, that does not necessarily resolve the issue of who the holder is with respect to the cryptocurrency.

Is the holder the cryptocurrency exchange, the online wallet provider, or another form of financial intermediary? In general, a holder is defined as an entity in possession of unclaimed property belonging to another person or entity.

Beware California’s Added Unclaimed Property Fraud Potential

More often than not, the owner has a private key or password needed to transfer the cryptocurrency, in which case a cryptocurrency exchange or wallet provider likely would not be able to transfer the property to the state, and the state likely could not assert the right to take custody of the property. In such cases, the exchange or wallet provider may be deemed not to have possession and control of the property, and thus not be subject to reporting obligations under state unclaimed property laws.

Additionally, states do not typically hold non-cash assets reported and remitted pursuant to unclaimed property laws; rather, commodities and tangible items e. Importantly, should the owner later contact the state to recover such property, the owner will receive only the liquidated value of the asset, not its potential appreciated value.

If the state were to require the holder to liquidate the cryptocurrency and remit cash to the state, or if the state were to accept the cryptocurrency and liquidate the property upon receipt, any subsequent appreciation value to the owner could be lost. This liquidation process could harm the cryptocurrency industry and market participants, and would arguably fail to serve the legislative purpose of state unclaimed property laws which is to return unclaimed property to its rightful owner. Liquidation may also invite litigation against holders for negligent escheat, or against the states for unlawful takings.

In many instances it also may be hard to track ownership of a liquidated cryptocurrency.