Pet Care Planning

Roy S. Gilbert, JD*, CLU, ChFC

June 07, 2023

Many people who have pets consider them as part of the family. They are often in family photos, sometimes their birthdays are celebrated, and I know of one instance where an obituary announcing the death of a pet was published in the local newspaper. Similar to the concern for minor children who survive the deaths of their parents, pet owners are concerned about taking care of their pets that survive their death.

Companion animals such as dogs and cats have acquired a special status over the years. Mistreatment of them is punished and it is generally not socially acceptable to eat them or wear their fur. The dog-human bond may date back 12,000 – 14,000 years. The domestication of cats is thought to be more recent dating back to sometime between 4200 BCE and 1000 BCE³.

In the Family Wealth Decision’s periodic newsletter, we publish a feature called “Aesop’s Corner” where we highlight some of Aesop’s Fables which may teach us modern moral lessons⁸. These fables often engage in anthropomorphism, the attribution human characteristics to animals⁴.

Unfortunately, pets are not people. Legally, they are considered property and as such cannot own their own property¹. Planning for the care of pets after their owner’s death can involve personal, financial and legal decisions¹.

The personal decisions involve who will be entrusted with the care of the pet;
The financial decisions involve how funding will be provided for the pet’s care; and
The legal decisions involve ways to increase the probability that your post-mortem pet care goals will be achieved.

What are some of ways to plan and some things you can do to ensure that your pet may be taken care of if you cannot provide the care yourself?

Do nothing. If no special provisions are made regarding your pets, when you die, your pets may pass to your heirs as might the rest of your property. Your heirs may decide what care to provide at their own expense or possibly relinquish custody of the animal to another.
Provide simple instructions in your will. A simple will instruction carving out some assets for the care of a pet may seem perfectly serviceable, however there isn’t any oversight to make sure this care will happen. It is generally not recommended that a parent with multiple children leave everything to one child to “do the right thing.” Similarly, a simple instruction in the will may not be generally recommended⁵.

Additionally, the will of the pet owner takes effect only after the pet owner’s death. What about pet care in the event of pet owner’s incapacity or disability? Again, as property and not people, pets don’t have their own powers of attorney and health care proxies. However, a pet owner may provide specific directions with respect to expending funds and providing care for pets in the event of the principal/owner’s incapacity². Powers of attorney are not operational after the death of the principal⁶.

A pet owner’s health care proxy also is only valid while the pet owner is alive. However, it can include a notice that there are pets that need care and reference any documents that may pertain to the care of the pets, such as a pet protection agreement or a pet trust².

An enforceable pet care agreement between the pet owner and a care person can be created. Attorney Rachel Hirschfeld has developed and trademarked a simple “check the box” and “fill in the blank” pet protection agreement wherein a designated pet guardian agreed to provide care in the event of the pet owner’s death or disability². It also encourages naming a pet sanctuary if neither the pet owner nor the pet guardian can meet their pet care obligations.
Pet trusts. As stated previously, pets are property and therefore cannot own their own property. Since they cannot hold title to property, they cannot be the beneficiary of a trust². Pet trusts are now valid in all 50 states¹. The law of each state should be checked for rules of that state. A funded pet trust can provide a high likelihood that the care decisions and instructions for pets will be followed. In addition, a pet trust created in addition to your will can provide for pet care if you are disabled and not dead.

In NY, the Estates, Powers and Trust Law (EPTL) section 7-8.1 describes a valid “Honorary Trust for Pets” to provide funds for the care of a pet. This trust terminates when the pet or pets covered by the trust expire or at the end of 21 years, whichever comes first. Any trust property remaining after trust termination passes as directed in the trust, or if there are no directions, to the estate of the Grantor (creator of the trust).

Interestingly, this statute also provides that the Court may reduce the amount of property transferred to the trust if, in its opinion, that amount substantially exceeds the amount needed. Leona Helmsley, who died in 2007, left $12,000,000 to her Maltese, Trouble, in a pet trust. The annual care expenses totaled about $190,000 and the Court reduced the trust amount to $2,000,000⁷.

Making sure that your wishes are known and adhered to in connection with the care of a pet in the event of incapacity or death requires a little bit of thought and some coordination with the remainder of your planning. The personal, financial and legal decisions you might make for pet care may impact other planning decisions you have made or might make.

This is a great reason to consult a financial advisor familiar with your planning to assist in these kinds of decisions. We invite you to contact us at the “pet friendly” Family Wealth Decisions Group to discuss your pet planning and any other issues of concern. We are here to help.

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