Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, April 6, 2023

Article: Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property

Brittany Deitch (Capital University Law School) recently published an article, Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property, University of Colorado Law Review, 2023. Provided below is an abstract to the Article:

Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or formerly incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation.

Thus far, pay-to-stay laws have survived constitutional challenges, but recently some state legislatures have faced public pressure to abolish or limit the scope of their pay-to-stay regimes. This Article criticizes pay-to-stay statutes generally, while addressing the special concerns arising when states use these laws to take inherited property as reimbursement. In particular, when states seize inherited property to satisfy the costs of incarceration, the states interfere with the decedent’s testamentary freedom of disposition, as well as the beneficiary’s freedom to inherit. As a practical matter, these statutes apply inequitably by disparately impacting people without substantial wealth and people from communities that have historically been systemically excluded from intergenerational wealth.

Looking more broadly, this Article considers the implications of this practice on America’s carceral state. First, authorizing the government to seek reimbursement for incarceration costs from a broad range of sources reduces the urgency to decarcerate. Put simply, if incarceration is “user-funded,” rather than taxpayer-funded, lawmakers are disincentivized from meaningfully addressing mass incarceration. Second, when private prisons administer the incarceration, a for-profit entity yields a profit beyond the costs of incarceration. This is unconscionable generally but is especially so when the assets seized are inherited property. Third, pay-to-stay perpetuates a cycle of poverty that is known to be counterproductively criminogenic. The families and communities of the affected person experience the harms of this poverty cycle. This Article concludes by proposing the abolition of pay-to-stay statutes generally. At the very least, these statutes should not permit the state to intercept inheritances.


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