In times of crises, such as death or divorce, animals’ feelings and security are sometimes forgotten. During these difficult times—which are also traumatic for nonhuman members of the household—it is vital to make solid arrangements for animals to ensure their continued care and well-being.
Providing for Animal Companions in the Case of Divorce
Courts have seen a dramatic rise in divorce cases involving animals, and even though the legal system in most states treats animal companions no differently than a couple’s furniture or season tickets, one law professor observed, “My sense is that judges are starting to recognize from their own experiences that pets are different from other property.”1 In 2019, California became the first state in the country to allow judges to consider what’s best for companion animals in a divorce case. The author of the law, Democratic assemblyman Bill Quirk, told NBC that, “To treat a pet as property made no sense to me. We’ve actually had judges who said you can sell the dog and split the proceeds.”2 The new California law allows people to petition for custody of a companion animal and the judge to take into consideration things like who walks, feeds and plays with the animal.3
In the event of a separation or divorce, each party’s ability to provide a loving, responsible home should be reviewed; the custodial guardian must be able to handle the expense and responsibility of caring for the animals, including providing exercise and paying for food and veterinary care. Some couples include support payments for the animal’s care in divorce settlements. This is often the case if a couple adopted the animal jointly and agree that they share guardianship. If the animal has bonded strongly with one of the parties, that factor should weigh heavily in the decision as well. A mediator can be helpful in this decision.
In some cases, a shared custody arrangement may be appropriate. Some dogs don’t mind moving back and forth between homes and may even enjoy the reassurance that both of the people they love are still around and have homes for them, but others might be adversely affected by conflicting diets or house rules. Most cats are disturbed by having their living arrangements frequently changed.
Anyone planning to take full- or part-time custody of an animal should make sure ahead of time that he or she will be able to find a house or apartment that allows animals. If you will be traveling frequently on business trips, think ahead about what arrangements you can make for your animal’s care while you are gone.
If neither party is able to keep the animal, it is essential not to make an easy or rushed decision but to carefully choose a new home where the animal is sure to be treated well for the rest of his or her life. Humane and breed rescue groups may be able to help.
Providing for Your Animal After Your Death
Just as you plan for your spouse or children in the event of your death, you should do the same for any animal companions in the family.
Short-Term Arrangements: It is essential that you arrange for someone who can come to your home on short notice to provide immediate temporary care. The person (or better yet, persons) should know your animals—and vice versa—and will need to be able to feed them, provide them with fresh water, console them (as they will be pining and worried), and take care of their needs until long-term care has been arranged.
It is also important that you have vital and personal information about each of your animals readily accessible. At a minimum, you should provide a list of people to contact in case of an emergency, along with the following: names, ages, and genders of your animals; the name and location of each animal’s veterinarian; each animal’s diet, eating habits, and feeding schedule; pictures of each animal; and insight into each animal’s behavior and current lifestyle. As with all your long-term planning documents, this information should be reviewed and updated annually. You should also keep critical information in your purse or wallet and place a sign indicating the number of your animal companions in a highly visible location in your home.
Long-Term Arrangements: Selecting the permanent guardian(s) for your animal companions may be the most difficult aspect of estate planning. It is a good idea to name at least two candidates in case your first choice is not able or willing to take responsibility for your animals. The key factor in selecting permanent guardians is trust—choose people whom you trust to provide a loving home. Make sure that they are very kind, have experience, and understand the responsibilities that they are accepting.
To ensure that your animal companions will be appropriately cared for after your death, we suggest that you complete your plans by consulting with your attorney. One option is to include a provision in your will or trust leaving ownership of your animal companions with the permanent guardian you have selected along with funds to assist with the animals’ proper care.
“Pet Trusts”: Another option, and one that is generally more reliable, is to create an enforceable trust in favor of the permanent guardian as the “beneficiary.” Then transfer your animals—and funds for their care—into the trust as trust property, requiring that your named trustee watch over the beneficiary and make appropriate distributions for the care of your animals.
In addition, the majority of states have now passed legislation permitting “pet trusts” that authorize the creation of enforceable trusts for animals. If your state allows pet trusts, you should pay careful attention to what, if any, limitations they may have and consider whether there is a possibility that you may one day move to a state that does not permit them.
Depending on your situation and the laws of your state, there will be many factors to take into account when deciding which path to take. It is important, however, that your family members and friends know of your arrangements and, again, that you have arranged for the immediate temporary care of your animal companion(s) in case it takes time for your estate matters to be settled.
If you can’t find someone you trust to be the permanent guardian of your animals, you might ask a local charitable organization with acceptable standards to adopt your animal or place him or her in a good home in the event of your death. Make sure that you leave the organization enough money to care for your animal for the rest of his or her life. Your attorney should be able to guide you through this process. In the case of an older, timid animal, it can be more humane to consider euthanasia rather than the transition to the home of someone the animal doesn’t know well or trust, as elderly animals are often less adaptable and more likely to have trouble adjusting to a new environment and overcoming their grief.
1Andrea Siegel,“Split Custody of Dog Recognizes Changing Role of Family Pets,” Baltimore Sun 18 Jul. 2010.
2The Law Offices of Makeupson & Howard, “California’s New Pet Custody Law,” 29 Dec. 2018.
3Elaine S. Povich, “Doggie Divorce: Who Gets The Pet When Couples Split?” Pittsburgh Post-Gazette, 17 Jan. 2019.