Pet Animals: What Happens When their Humans Die?

Abstract

Beginning in prehistoric times, animals and humans have enjoyed a special bond growing from the need for companionship and protection. The impact of pet animals on our lives continues today with upwards of 100 million American households owning pets. Many owners are anxious to make arrangements for the care of their beloved companions which will transcend death. The common law courts of England were relatively quick to accommodate pet owners by approving honorary trusts in favor of animals which, although not enforceable, permitted the trustee to use the property for the pet's benefit. This approach, however, did not cross the Atlantic. Attempted gifts in favor of specific animals usually failed for a variety of reasons such as for being in violation of the rule against perpetuities because the measuring life was not human, or for being an unenforceable honorary trust because it lacked a human or legal entity as a beneficiary who would have standing to enforce the trust.

Modern United States law reflects a shift away from non-recognition and even beyond the English view of acceptance to the actual enforceability of trusts for the benefit of animals. This movement has been gaining momentum at a rapid pace triggered, in part, by the approval of § 2-907 of the Uniform Probate Code by the National Conference of Commissioners on Uniform State Laws.

This article chronicles the evolution of gifts for the benefit of pet animals beginning with a review of the common law background and continuing with a detailed discussion of the wide variety of approaches the United States courts, legislatures, and commentators have adopted which range from total rejection to hardy embracement and many points in between. After establishing the current milieu in which a pet owner must function, the author emphasizes the importance of the pet owner considering both short-term care for the hours and days after the owner's death as well as long-term care for the duration of the animal's life. The author enumerates a variety of techniques available to the pet owner to maximize the chances of the pet receiving the desired care and recommends the use of a conditional gift in trust to the pet's caretaker.

Keywords: animal law, trusts, pets

JEL Classification: K11, K19, K39