I am doing estate planning with my partner of five years and recently the issue of our pet teacup Chihuahua came up. We have had him since he was 3 months old and he is like a child to us. We know how important it is to put together documents that protect our relationship but what can we do to protect his interests if something were to happen to us? Are there any specific steps we should take?
I wish I could say that the law reiterated my belief that pets are people too, as well as important members of our families, and deserving of equal protection under the law. Unfortunately, there are some tricky aspects to making sure your pets are protected if something were to happen to you.
First and most shocking is that the law considers pets as "chattel" meaning property. This means among other things giving them direct bequests in estate documents is difficult. A recent law article stated horrifically and unapologetically that "A direct gift of money or other property to a pet cannot be made because an animal is property and one piece of property cannot hold title to another." Strike you as inhumane? It’s unfortunately the way the law sees it, which causes problems for families with different species not just in estate planning but also in the event of a dissolution of the relationship. Courts do not recognize pets as family members or consider the emotional and personal value of pets and ascribe only dollar value to them in considering disputes regarding partnership dissolutions.
One solution is to bequest money to the individual or organization designated to care for your pet, but you would not necessarily be able to enforce the beneficiary to use these monies for your pet. In contrast, a small but growing number of states, including New York, are starting to allow trusts for animals. This allows you to appoint a trustee, to ensure that your pet is cared for using the assets of the trust. There are some limitations, such as the trust cannot exceed 21 years, even if the life span of the pet is longer.
As for issues that may affect your pet in the event of a dissolution of your relationship, this should be effectively resolved in a well drafted and properly executed domestic partnership agreement.
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*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.