Heirs’ Property: The Legal Issue That Has Cost Black Farmers $326 Billion

September 21, 2023 | 11:29 am
photo of two Black farmers, one male and one female, standing side by side looking out at their farm, with woods in the backgroundBill Cotter/UCS
Archie Creech
Outreach Coordinator

The temperature in my car reads 112. The heat wave doesn’t seem to bother the cicadas, though, as they hum from the tree line, drowning out the conversations of folks milling about wherever there’s shade.

I’m excited to be back in Alabama, where I grew up, on this sunny August day to join hundreds of Black farmers and agricultural stakeholders who have gathered for the annual meeting of the Federation of Southern Cooperatives/Land Assistance Fund, a 56-year-old cooperative association of Black farmers, landowners, and cooperatives serving a membership across the South. These farmers span generations and work farms from Texas to South Carolina, and they’ve gathered to talk about the issues facing them.

Chief among their priorities is the little-known issue of heirs’ property, a situation in which property is passed down through generations without a will or legal title.

I say “little known” because most of you have probably never heard of heirs’ property, just as I hadn’t. Prior to joining the staff at the Union of Concerned Scientists in 2022, I did faith-based organizing in Central Florida and campaigned for affordable housing and criminal justice reform. Heirs’ property affects homes as well as farms, but it was a new issue for me.

Sitting among these farmers in the auditorium of the Federation’s Rural Training and Research Center in Epes, Alabama, however, I realize that although it may be confusing to me, heirs’ property is nothing new for those in attendance. Legal problems from this system have plagued BIPOC (Black, Indigenous, and other people of color) landowners across the country, and especially in the South, ever since these groups were legally allowed to own land in the first place. Because this issue often applies so specifically to marginalized groups with little institutionalized power in our country, the system has remained unheard of and unchanged for generations.

What is heirs’ property?

In the US legal system, property inherited without a will gets split up among the heirs. If you had two siblings, for example, your mother’s home would be split equally among you, each legally owning a one-third interest in the home.

This seemingly minor piece of legalese quickly becomes real when we apply it to the messy history of the United States. In the 160 years since the end of the Civil War, systemic and economic discrimination against BIPOC communities has meant that countless landowners across generations have passed away without a will, leaving their property to be divided among their heirs. Sometimes, they were blocked from entering spaces by racist local officials who simply wouldn’t let them into the local tax appraiser’s office, or they couldn’t get an appointment with a local Farm Service Agency agent. In other cases, they couldn’t afford an attorney to create a will and handle their estate. And others, knowing and not trusting the system they existed within, chose to bypass legal channels by verbally committing their last will to their family, perhaps simply leaving their property to the eldest child or splitting it up evenly among their children.

“And so there’s this punishment for people whose great grandparents truly believed that the most fair thing to do was to leave it to all of their children,” says Jasmyn Story, steward of Freedom Farm Azul in Prattville, Alabama, whose family owns heirs’ property land. “That was an act of love, not an act of negligence.”

Over the past year, UCS worked with the Federation and other partners to craft the policy brief Lost Inheritance, which summarizes this confounding issue and offers policy recommendations that can be written into this year’s food and farm bill.

We interviewed Jasmyn Story and other Black farmers to hear about their experiences holding heirs’ property and interacting with the federal farm system.

“When I think about my relationship to heirs’ property, I think about my great grandparents,” Story recalls. “My great grandparents worked very hard to acquire land in rural Arkansas. While White farmers could go into the bank and buy land through traditional paths and transactions, my great grandfather was publicly humiliated when he went into the bank. He survived this humiliation in order to make sure that his 12 children that would come would have something of their own. This property has always been described to me as something that deeply needed to be protected because of the sacrifices that went into acquiring it in the first place.”

The problem for decades for these property owners is that US law doesn’t recognize these kinds of agreements. Legally, the property was split, regardless of what the family had agreed to.

It’s a problem that multiplies

Back at the Federation’s annual meeting, one woman in the audience stands up to ask a question: “My grandfather had eight children. So, each one of them got one-eighth of the property. I understand that. But one of those eight passed, and they had five kids. So how many heirs are there now?”

“There would be 13 heirs now,” a representative from the Federation, who leads these trainings across the South, responds.

“But those aren’t equal!” a farmer and former board member for the Alabama Cooperative cuts in. “Those five children split up that one-eighth, so that means that each one of them has one-fortieth of a share, because they split up the one-eighth. And if it were passed down from them, their kids would have one-eightieth of a share of that original land. This is why this is such a problem!”

You could see the eyes cross in the crowd as others did the math for their own families.

I recall the nations of Israel from the Old Testament, where nations were born out of one lineage, one family. One infamous case of heirs’ property has more than 2,000 heirs to a single piece of land. And here, a legal system comes in again to the detriment of marginalized property owners.

Predatory developers win, Black farmers and families lose

A particularly insidious issue with all of this is that, in many states, a developer that buys just one family member out of their share of the land can then legally trigger the sale of the entire property. Greedy developers find one member of a family, perhaps someone who had long since left the land, living in a faraway state, and say, “For that one-fortieth share, we’ll give you $2,500.”

For that distant family member—a “stranger cousin” as they are often called—with no connection to the land, this might seem like a no-brainer. But just like that, the rest of the family has lost control of the land. The developers can force the sale of the entire property out from under the family, which typically doesn’t have the means to compete with these wealthy developers in a sale or auction.

In doing research on this piece, I got a sponsored ad link on Google pointing me to resources for how to force the sale of real estate in my state of Florida.

This phenomenon has been a major force in the loss of Black-owned land in this country, especially among farmers. One hundred years ago, Black farmers made up 14% of all US farmers. Today, they represent less than one and a half percent.

Read that again: from 14% to just 1.5% over the last century.

Across the country, 98% of US farmland is White-owned. Truthfully, I can’t think of a better statistic to represent the systemic reality of White supremacy in this country. Researchers conservatively estimate that between 1920 and 1997, Black farmers lost $326 billion in land because of heirs’ property. Think about the generational wealth stolen from families because this problem goes unseen and unchanged. This is why UCS has partnered with experts and advocates at the Federation of Southern Cooperatives and the Center for Heirs’ Property Preservation and scientists at Auburn University, Tuskegee University, and the Socially Disadvantaged Farmers and Ranchers Policy Research Center at Alcorn State University to do something about it.

I am no expert on this issue, so over the next several weeks, we will feature voices from these organizations sharing their perspectives on the problem and what can be done by both the public and scientists. It’s important to remember that everything I’ve described so far is legal, and some would argue that the system is working as it was designed to work.

Can the system be fixed?

The last food and farm bill in 2018 created the Heirs’ Property Relending Program to help heirs’ property owners access loans to help them secure their land. Usually, families work with lawyers to create will and estate plans and clear land titles by buying out their fellow family members. Consequently, the land comes under the protection of one family member who is less vulnerable to being bought out by a developer. Additionally, the Uniform Partition of Heirs’ Property Act was passed in 2010 to prevent the kinds of forced sales described above from happening, but it has been enacted in only 23 states.

Unfortunately, in the years since the launch of the Heirs’ Property Relending Program, only a handful of recipients have been named—primarily through Akiptan, a Native American Community Development Financial Institution (CDFI) that provides loans and technical assistance to those in Indian agriculture. Despite this progress on Tribal lands, families across the South have continued to lose.

UCS has directed our advocacy toward both heirs’ property and the food and farm bill because these issues are interconnected. Our agricultural system has exploited Black and Brown labor since before this country was a country, and that practice is frankly still very much alive.

Through corporate consolidation, the total number of farms has decreased by two-thirds in the past century (from 6.5 million in 1920 to just over 2 million in 2020), centralizing power and production in the hands of a few, at the expense of the small local farmer. This in turn has led to increases in climate-warming emissions from the agricultural sector.

Resolving heirs’ property and returning land to BIPOC farmers has the potential to repair past wrongs and return generational wealth, bring back new farmers to an aging industry, and restore communities’ access to healthy and sustainable foods, all while implementing sustainable practices that will reduce the amount of carbon in the atmosphere.

Small and midsize farmers often farm more sustainably than industrial operations by avoiding monocropping and high fertilizer inputs, while serving local communities. Much of their land is forested, sequestering carbon that would otherwise be in the atmosphere. But landowners won’t qualify for benefits from government sequestration programs if they don’t have a title to their land. Ironically, we’ve heard that these government programs have increased the urgency with which developers are targeting heirs’ property because they see these sequestration programs as a gold rush opportunity and are jumping to buy up land before more federal protections are passed for vulnerable heirs’ property owners.

It’s clear that the set of laws governing heirs’ property needs to change, and we are working hard with our partners to ensure that our collective advocacy pays off. Our organizational and research partners are doing great work studying, communicating, and advocating about how this system is affecting the communities they work with in the South, and what we can collectively do about it.

You can join in this effort by asking your members of Congress to support the Justice for Black Farmers Act and to defend our food and farm system—and the bill that governs it—from attack by members of Congress who choose to represent massive industrial agriculture corporations rather than the farmers and farmworkers who make up their districts.

If you are a scientist interested in doing more to support BIPOC farmers and the farm bill, I encourage you to join our UCS Action Network or our Science Network and reach out to me to hear about what you can do at the local level to influence this critical legislation. Remember: don’t panic; organize.