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Excerpted From: Terrence M. Franklin, Black Deaths Should Matter, Too!: Estate Planning as a Tool for Antiracists, 68 No. 3 Practical Lawyer 9 (June 2022) (67 Footnotes) (Full Document)


TerrenceMFranklinJust as the negative effects of most legal policies and practices have a disproportionately greater negative impact on people of color, and particularly Black people, it may be especially important for Black people to be aware of the importance of planning for death, disability, and illness. I learned from the story of my great-great-great-great grandmother's emancipation from slavery in 1846 that doing an estate plan may be also an important way to be an antiracist.

What does it mean to be an antiracist? Author, professor, and antiracism activist Ibram X. Kendi has explored the roots of racism, and how to dismantle it wherever it exists, by taking action to be antiracist. Kendi recognizes race as a construct introduced and developed to situate power in the hands of White people, preserving that power there, and exclusively transferring that power from white hands to white hands.

Kendi focuses on the importance of seeing and exposing racist policies and practices, so they can be disrupted and dismantled. He warns against focusing on and calling individuals out as racists. Doing so, he says, is not the most effective way to create change in society that is truly impactful at improving equitable outcomes.

Rather, focusing on the racist policies and practices that result in inequality takes some emotion out of the discussion, and frees people to work together to attack policies with racially inequitable consequences. Black people should look squarely at what can be done with “estate planning” and then act in antiracist ways-to disrupt policies, laws, and practices that have inequitable racist effects. We may insist that Black Lives Matter, but in the end, shouldn't Black Deaths Matter, too?

[. . .]

For me, it means using whatever power I have to push for policies and actions that counteract the inequitable results of existing racist policies and practices. I can advocate within my circles, like ACTEC, to call out racism and to make authentic and meaningful outreach to attorneys who may not even be aware of the benefits of undertaking the effort to qualify for nomination in the organization, by encouraging and supporting them in developing their speaking and writing portfolios. I can also call on ACTEC to study its membership requirements and assess whether they have racist impacts and act to change them.

I can point out the racist rules and policies that trusts and estate lawyers employ to facilitate transfers of wealth from generation to generation and argue that they should look for anti-racist alternatives.

I can encourage Black people to stop and think about what will happen to their property and those they love after they are gone and encourage them to take steps while they are alive and competent to exert control and not leave it to racist structures to control what happens.

I can encourage young people to think about their futures, so that some may consider choosing the law as a career, and that some will even think about estate planning so that they can help a coalition of heirs to consolidate the power of family shares into a limited liability company that can pay the taxes, develop property, and generate income for the family.

Thinking about and taking action to do estate planning is a way to be antiracist -- to not let a network of policies of property ownership and transfer that have negative impacts on Black people continue to control how we live our lives. And I promise, this week, I am going to make an appointment to get my estate plan up to date.

TERRENCE M. FRANKLIN is a founding partner of Sacks Glazier Franklin & Lodise with nearly three decades of experience handling trust and estates and probate litigation, disputes, and appeals.

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