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Marlene Cooper Law

Emancipation and Estate Planning

February is the month when our country takes time to remember and celebrate Black History. We give honor to our great ancestors and rejoice about how far we’ve come. In parades, poems, church services and school performances, the nation commends the leaps and bounds we have traveled and the heroes who have guided us along the way.

From slave shacks to the back of the bus to the White House, Black people have worked hard to get where they are. Normally, we hear the same names, the same speeches, and the same stories — as we should, because greatness never gets old. I’d like to offer a new perspective to remind us just how far Black people have come and how much there is to be thankful for.

Have you ever heard anyone say, “If you die without a will, the State gets everything” or “If you die without a will, the government will take it all”? Many of us have heard it, and some still believe it. The fact is that it is a rare case these days when a person’s property goes to the State upon his or her death because he or she doesn’t have a will. Only in the case where no blood relatives can be found will a person’s estate be forfeited to the State upon death. In spite of this reality, the myth that failure to have a will results in forfeiture to the State still circulates because it was a frightening and cold reality for Black people in the post-Civil War era.

In 1865, when the Emancipation Proclamation was enacted, the Thirteenth Amendment abolished slavery and set the slaves free. Slaves were transitioned from property to persons, from cattle to civilians. But emancipation had one shortcoming: it did nothing to undo the injustices already done to Blacks who had been living in slavery. The message was, “We acknowledge your humanity from this day forward, but we don’t acknowledge anything that happened before today.” Thus, no marriages, divorces, births, nor family relationships which occurred prior to 1865 mattered in the eyes of the law. If a slave man and a slave woman had gotten married before 1865, it didn’t matter. If a slave woman had given birth to a slave child before 1865, it didn’t matter. Any human bonds that were forged before 1865 simply didn’t matter. No slave had any legal relationship to another. The mindset of the prevailing society was clearly stated during an 1899 Supreme Court case: “Emancipation was not retroactive; nor could it infuse inheritable blood into those who did not possess it before emancipation.” The laws of intestate succession whereby a person’s relatives would inherit his or her property upon death in the absence of a will simply didn’t apply to pre-1865 slave relationships.

Under such circumstances, a person had two options to insure that his or her property would go to his or her relatives upon death: (1) go to court and struggle to prove a relationship that had already been a reality, or (2) the best, maybe only viable option, was to have a valid will. If a former slave had not legitimized pre-1865 relationships and had no will, all land and property would be forfeited to the State upon his or her death since no pre-1865 heirs could claim it.

It is hard for us to imagine such an unfair and insensitive practice today, but I encourage you to do so. When we think about what our ancestors endured and overcame, it helps make us all the more grateful for the freedoms, wealth, and opportunities we have today. © 2014 by Marlene S. Cooper. All rights reserved.

Marlene Cooper Law