Criminal law scholars and estates and trusts scholars do not usually travel in similar circles. They do not typically attend the same conferences or read each other’s work. With the exception of the slayer rule, criminal law might even seem irrelevant to estates and trusts law. Yet, Brittany Deitch’s eye-opening article, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, illustrates how criminal law and inheritance law intersect to deny currently and formerly incarcerated individuals the ability to inherit, thereby magnifying the racial and economic inequalities created by either criminal law or inheritance law alone.
Deitch’s article exposes the injustices of pay-to-stay laws—statutes that allow the government to seek reimbursement from currently or formerly incarcerated individuals for incarceration-related costs, ranging from medical care and transportation to room and board. Although forty-seven states have some form of pay-to-stay requirement, Deitch focuses on states that expressly allow the government to recover these costs from an inheritance, or that are silent on whether the government may seize inherited assets. In these states, the government may seize an incarcerated (or formerly incarcerated) person’s inheritance to recoup the costs it expended in connection with the distributee’s incarceration. Deitch argues that seizure of an inheritance in these cases infringes the decedent’s testamentary freedom and undermines intestacy law’s goal of preventing escheat. As she explains, a testator would not want assets intended for the benefit of their currently or formerly incarcerated family member or loved one to go to the state. When the decedent is intestate, she observes, seizure of property that would otherwise pass to heirs circumvents intestacy law’s aim of averting escheat whenever possible.
Deitch contends that the impact of pay-to-stay laws is not confined to decedents, heirs, and intended distributees but also produce social inequities that harm entire communities. She demonstrates that inheritance seizure policies disproportionately impact less wealthy individuals who lack access to professional estate planning. Sophisticated parties can utilize discretionary or spendthrift trusts to prevent the state from reaching assets bequeathed to incarcerated or formerly incarcerated persons. Deitch further demonstrates that these laws disproportionately harm racial minorities, especially African-Americans. She draws on studies showing that African-Americans are more likely to be incarcerated and on scholarship tracing how anti-miscegenation laws, segregation, redlining, and discriminatory lending have contributed to intergenerational poverty. The cumulative discriminatory impact of those polices have tended to exclude African-Americans from the economic benefits of intergenerational wealth transfers. Using this work, Deitch persuasively argues that pay-to-stay statutes that permit seizure of inheritances exacerbate the racial wealth gap.
While these reasons amply support Deitch’s objections to pay-to-stay statutes, she does not stop there. Turning her attention to other policy implications, she asserts that pay-to-stay laws create perverse incentives and unintended consequences. By shifting some of the costs of mass incarceration onto currently and formerly incarcerated individuals and their families, pay-to-stay laws alleviate public pressure to reduce those costs. As Deitsch observes, “[t]hese statutes’ attempts to create a user-funded system reduce the perceived need for decarceration.” (P. 5.) Moreover, she argues, when the state contracts with private prisons and then seizes an inheritance to defray incarceration-related costs, a for-profit enterprise effectively appropriates property from an innocent individual. Finally, she demonstrates how these laws actually contribute to mass incarceration. By keeping formerly incarcerated persons and their families in poverty, she argues, laws permitting seizure of inheritances inhibit reentry and increase the likelihood of future crime—which often leads to incarceration.
Since the racial reckoning that began with the murder of George Floyd in 2020, estates and trusts scholars have engaged in greater efforts to address how inheritance law perpetuates racial and social inequality. Deitch’s article is the epitome of civically engaged racial and social justice scholarship. She exposes a practice that has dire consequences for communities that the law has marginalized historically and continues to disadvantage today. Deitch concludes that “[w]hat is at stake when the state seizes inherited property is the expansion of the carceral state to deepen the deleterious impact of incarceration on the families and loved ones of the incarcerated person.” (P. 13.)
If Deitch had a magic wand, states would abolish pay-to-stay statutes altogether. She acknowledges, however, that this is unlikely as courts have rejected constitutional challenges to pay-to-stay statutes. Consequently, she urges states, at minimum, to stop seizing inheritances to cover incarceration-related costs. Readers may disagree on whether states should require persons convicted of a crime to reimburse the state for the costs of their punishment. Few readers, however, could justify seizing the property of a person who has not engaged in any wrongdoing. As Deitch illustrates, that is precisely the impact of pay-to-stay statutes when they permit seizure of inheritances. They take property that a decedent expected to pass on to an intended beneficiary or heir and redirect it to the entity (the government) that caused their family great pain.
I thought about Deitch’s article for about a week before writing this Jot. During that time, I found myself asking what can be done if states fail to adopt Deitch’s proposal. Some lawmakers and taxpayers will object to allowing an incarcerated person to receive an inheritance while the state is paying for their medical care, room, and board. But they are less likely to object to diverting the same inheritance to other non-incarcerated members of a decedent’s family. Surely, we can find a way to ensure that inherited property inures to the benefit of a decedent’s own family rather than the state that incarcerated a decedent’s loved one, even if states retain other aspects of their pay-to-stay laws. Deitch invites scholars to consider legal doctrines that would blunt the effect of pay-to-stay laws if lawmakers reject her wise solutions.
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