The so-called “clean slate” law will be effective as of Jan. 1. It allows for the erasure of criminal records for those who remain crime-free for an extended period. However, erasure of a criminal record does not erase an individual’s obligation from using an inheritance to pay for incarceration.
Both public and private employers in the state will need to comply with new rules regarding the use of “erased criminal history record information.” The General Assembly stated, “that the public is best protected when criminal offenders are rehabilitated and returned to society prepared to take their places as productive citizens and that the ability of returned offenders to find meaningful employment is directly related to their normal functioning in the community.”
With that as the objective, it is clear that the legislation does not go far enough. The new law does not address the incarceration liens placed on a former offender’s estate or any estate that a former offender may inherit from. In Connecticut, when you die, if a beneficiary of your estate was incarcerated at any time within the past 20 years, the state will file a lien in the Probate Court seeking reimbursement for up to 50% of the costs of incarceration. When a previously incarcerated person dies, the State can seek reimbursement of up to 100% of the cost of incarceration from the decedent’s estate.
Imposing a lien on inherited property is counterproductive given the legislative goal to rehabilitate and return criminal offenders to productive citizens. Recently, the legislature all but removed the incarceration lien for lawsuits, so why is the incarceration lien for inheritances still in place?
If one of the important goals of incarceration is rehabilitation, should we not, as a society, remove barriers and burdens to success or even survival? An incarceration lien on inheritances places a continuing burden on our criminal offenders for up to 20 years, far beyond any sentence imposed by the criminal justice system. This continuing punishment affects not only the previously incarcerated individual, but also the immediate family members, who had no part in the criminal activity that led to incarceration.
Imposing an incarceration lien on an estate is akin to kicking someone when they are down. Someone has just lost a loved one, is grieving and going through the process of settling an estate through probate, only to learn that up to 50% of their inheritance is going to be swept away by the State. This places a continuing financial burden on our criminal offenders, for up to 20 years, who have supposedly repaid their debt to society.
Families often do estate planning to promote generational wealth accumulation. The incarceration lien disincentives generational wealth accumulation and promotes generational poverty. The cycle needs to be broken.
Repealing the incarceration lien for inheritances will have little to no impact on the State’s coffers, but will have a substantial impact on those who would otherwise be subject to the harsh realities and effects an incarceration lien can have on an inheritance.
As with estate planning for everyone, proper planning can help. Until the law is changed, for some individuals, it may be possible to reduce or perhaps even eliminate the dire consequences of an incarceration lien.
Attorney William P. Burns, Jr. focuses his practice on estate planning He is a principal at Naugatuck-based Burns Thomas, LLC, and can be reached at 203-723-9420.
