Property Law and the Intestacy Entitlement

Abstract

There is a wealth gap between whites and non-whites in the United States, in part because of the superior rights that whites have had to acquire property. Those who own real property are much more likely to accrue wealth than those who do not. This does not hold true if you own heirs property. Heirs property is a form of intergenerational tenancy in common ownership that is created when an owner of property dies without a will. The owner’s relatives become co-owners and then, when they die, their own heirs join the ownership group, which expands with every generation. Unlike other owners of real property, heirs property co-owners don’t have deeds or proof of ownership that they can use to protect their legal rights or to participate in the real estate market. African American, Appalachian, and Native American owners are disproportionately affected by this problem. It is estimated that in the United States there are millions of acres tangled up in this manner.

Using one’s interest in property is an excellent way to acquire wealth. Heirs property owners can’t acquire wealth in this way, however, because of how fragmented and uncertain their ownership is, effectively excluding them from the market. Property law generally supports real estate transactions by ensuring certainty and alienability, but it fails with respect to heirs property. Worse, it tolerates heirs property, allowing it to be created and then perpetuated.

This article offers a radical but philosophically consistent solution based on traditional property law rules and values. It calls on courts to utilize existing common law property rules, like the rule against perpetuities and the rule against restraints on alienation, to void heir property ownership interests that are too remote and to eliminate undeserving heirs from the heirs property ownership group. It calls on legislatures to make heirs property owners joint tenants with rights of survivorship by default, rather than as tenants in common. It also asks scholars to be more radical in offering creative solutions to this problem for the sake of those who can benefit most from its eradication.

Keywords: heirs property, property, rule against perpetuities, restraints on alienation, alienation, wealth gap, heirs at law, laughing heirs, tenancy in common, joint tenancy, primogeniture, survivorship, real estate, title, deed, ownership, intestate, intestacy, heir, heir at law, allotment, Irving, Hodel