Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, February 13, 2023

Article: The Heirs’ Property Problem: Racial Caste Origins & Systemic Effects in the Black Community

Brenda D. Gibson (Wake Forest University School of Law)  recently published an article, The Heirs’ Property Problem: Racial Caste Origins & Systemic Effects in the Black Community, The City University of New York Law Review, 2023. Provided below is an abstract to the Article:

This article enters the conversation about Black poverty in a new way—discussing the phenomenon of the heirs’ property ownership model as an impediment to Black wealth. As discussed in this article, heirs’ property is “family-owned land that is jointly owned by descendants of a deceased person” by intestacy. This model of property ownership is found throughout the United States, usually in places with high poverty and minoritized populations. Without more, heirs’ property seems a rather innocuous concept in property law. However, juxtaposed with the history of Black people in the United States, particularly through the lens of the South Carolina Low Country, and American systems that have birthed and nurtured incalculable inequities for us, it becomes clear that heirs’ property ownership is much more. It is both cause and effect: cause as it was birthed out of America’s racial caste system; and effect in that it has effected continued Black land loss, which ultimately threatens the culture of America’s slave descendants.

The article begins with an overview of property law’s Estates Systems, discussing the rather antiquated manner in which property rights are enjoyed in America, generally, before moving to the history of Black property ownership in America. This discussion necessarily begins with slavery, a dark but relevant period in this country’s history, as it informs the way Black people, specifically those in the South Carolina Low Country, enculturated themselves and exist to this day. In Part II, the article begins to unpack the systemic manner in which American institutions have coalesced to impede Black wealth. This part of the article details (1) how “White hands,” the USDA, one of the federal agencies charged with helping Black farmers, conspired with state and local officials to steal their land, and wealthy White developers, utilized loopholes in the law to force partition sales or simply approached an errant heir to do so. More saliently, this part of the article explains how the heirs’ property ownership model bolsters the loss of Black-owned property in the Low Country—being both the cause of Black land loss and the effect. Part II ends with a poignant reminder that the Low Country is the home of a unique culture, the Gullah-Geechee culture. This part of the article explains that this culture, which is indigenous to the Low Country and inextricably tied to the land, is endangered by the loss of Black land in the Low Country. Finally, in Part III of the article, a few solutions to the prolific loss of Black land and impediment to Black wealth are pondered.


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