In 2019, I attended the Heckerling Institute on Estate Planning. As a former trusts and estates attorney turned planned giving professional, I was excited to be a part of this illustrious annual gathering for the first time in my career. Running late for the opening plenary session, I quietly entered the back of the massive ballroom where over 3,000 trusts and estates attorneys sat listening to the opening remarks. And then I stopped. As I scanned the room for a place to sit, I was struck by the obvious and overwhelming demographic of the room — probably ninety percent of the people in the room were older white men.
As a white woman, this was an “a-ha” moment for me. I had always considered diversity, equity, and inclusion (DEI) work to be a necessary part of other legal specialties, most notably criminal law. It had never occurred to me that the trusts and estates sector had a part to play in the systemic marginalization of communities of color.
Fortunately, I was able to connect with one of the maybe half dozen Black lawyers at the conference, Shakisha Morgan, who teaches families and communities how to access generational wealth through her educational platform, The Legacy Counselor. Our candid conversations about her experiences as a Black estate planning attorney serving the Black community opened my eyes to some of the differences and challenges that exist in estate planning for Black clients.
One year later, George Floyd was murdered, the nation was engulfed in an increasingly pitched wave of racial unrest, and businesses, both non-profit and for-profit, started leaning into DEI work. It was during that time that Alesha Ignatius Brereton and I began researching how the planned giving sector could contribute to DEI initiatives in a meaningful way. What became clear almost immediately as we began our research was that the gap between the rates of planned giving among white Americans and Americans who identify as Black, Native American/Alaskan Native, Hispanic/Latinx, and Asian American/Pacific Islander has nothing to do with charitable intent and everything to do with lower rates of estate planning in communities of color. Because you can’t have a planned gift if you don’t have a plan, we focused our research on why this estate planning documentation gap exists.
In addition to our academic research, we also conducted interviews with attorneys who practice estate planning in the Black, Native American, and Asian American/Pacific Islander communities who were able to provide insightful context regarding barriers to estate planning in the communities they serve. What we pieced together was a complex web of historical, systemic, cultural, and individual barriers to estate planning in communities of color that have contributed to lower rates of estate planning as compared to white Americans.
The second installment of our series exploring the barriers to estate planning in communities of color is available here (and, in case you missed it, you can find the first installment here). In it, we tackle one of the historic roots of the barriers that have persisted to this day — the role that the law of trusts and estates has played in land loss in communities of color. Because property ownership is strongly correlated with the ability to build and convey generational wealth, communities of color who have had land systematically stripped from them may feel they have little reason to create estate plans. These communities have also faced exclusion from access to the type of planning that may have prevented such land loss in the first place.
Organizations like Where Is My Land, Land Loss Prevention Project, and Center for Heirs’ Property Preservation have emerged to help Black Americans reclaim lost or stolen land. Stewards of Indigenous Resources Endowment was formed to provide increased access to estate planning for Native American tribal members to help preserve land ownership.
If you are a planned giving professional who regularly interacts with donors of color, or if you are seeking to increase diversity in your legacy society, it is worthwhile to begin building your own cultural competency by learning the history of how the law of trusts and estates contributed to massive land loss within these communities, so that you can approach conversations with authenticity and empathy.
Our research paper series is our way of contributing to the larger conversation about DEI and planned giving, while also acknowledging that we all have more learning and healing to do.