Few US adults have an estate plan. Even fewer have included a pet in their plan. Perhaps you have an estate plan that addresses who will take your pet when you die. But does it address the possibility of your incapacity and the need for a temporary pet caretaker? In this blog, we discuss incapacity planning for people who have pets.
Formally incorporating your pet into an estate plan can ensure that, no matter what happens to you, your animal companion will be cared for like any other family member.
Americans Love Pets
The US pet ownership rate is among the highest in the world and has grown over the past few decades. However, calling them “pets” (generally considered property under the law) does not do justice to how much we value our furry, feathered, or scaly best friends.
A 2023 Gallup poll shows that 62 percent of Americans own a pet, and more than one-third (35 percent) have multiple pets. Ninety-seven percent of pet owners say that their pets are part of their family, including 51 percent who say they are as much a part of the family as a human member.
Pet spending per household has also increased and is now around $600 to $800 per year.[2] In keeping with the changing cultural mindset that pets are members of the family, owners are spending money on toys, treats, clothing, travel, daycare, pet sitting and boarding services, pet-specific insurance policies, and premium, healthy pet food.
Incapacity Planning — The Need for Pet Estate Planning
Spending more on pets reflects owners’ recognition that animals have complex physical and emotional needs that are not very different from ours. The law is also slowly starting to catch up with the idea that animals are living, feeling beings who deserve legal protection.
While US law has historically classified animals as chattel (i.e., property), this began to change in the 1800s with the introduction of animal cruelty statutes. Today, animal rights have advanced to the point where some states consider a pet’s well-being or best interest after their owners’ divorce.
Estate planning is another area in which legal decision-making increasingly reflects the deep and meaningful bonds we share with our pets. Every state now recognizes pet trusts, and more people are including pets in their estate plans to ensure their beloved companions are provided for if they die or suffer incapacity.
The pandemic was a wake-up call for many to get their estate plans in order. COVID also showed that when a pet owner gets sick and can no longer care for their animal companion, the pet could end up in a shelter. Of the approximately 6.3 million pets entering US animal shelters each year, nearly 1 million are euthanized.
Not having an estate plan can leave big questions unanswered, such as who will care for a minor child after a parent’s death or health emergency. Without an estate plan, the same questions apply to pets.
This does not mean pet owners should go to the extremes Leona Helmsley did when she left $12 million in her will for her dog. However, there are good reasons why pet parents should formally include pets in their estate plan and not rely solely on an informal verbal agreement with a caretaker.
Estate Plan Documents for Pet Caregiving
Best Friends Animal Society, a nonprofit animal welfare organization, recommends that owners arrange to have emergency and permanent caretakers for their pet.
According to Best Friends, Pet Owners Should:
Arrange for multiple caretakers.
Decide whether multiple pets should stay together or be placed with different caretakers.
Talk to potential caretakers about their pets’ needs, provide them with feeding and care instructions and veterinarian contact information, and give them a key to the house.
Let friends and family know who the available caretakers are and how to reach them.
Best Friends also recommends incorporating emergency and long-term pet care in a formal estate plan, such as a will or trust.
Pets and Wills
Because pets are viewed as property under the law, they become part of a person’s estate when they pass away. As a result, a pet owner can leave their pet as a gift to someone else, the same way they would any other property. The beneficiary of the pet would be known as the pet guardian. However, there are shortcomings to planning for a pet’s care in a will.
First, the person named as pet guardian could decline the gift of a pet, as there is no legal requirement for a beneficiary to accept any gift from a will. Your will can provide for a backup pet guardian or even multiple levels of backup pet guardians. But what happens if all of them decline the gift? You may think it would be a good idea to name an animal welfare organization as a beneficiary as a backstop, but Best Friends cautions that these organizations typically cannot offer the type of long-term care a pet needs. So, what happens if everyone you named as a pet guardian declines or cannot care for your pet?
Second, a will only takes effect upon death. Its terms do not apply when the pet owner is alive but incapacitated and can no longer care for the pet. That’s where incapacity planning comes in. Therefore, the pet could be left in legal limbo if the owner is sick, comatose, disabled, or otherwise unable to care for their pet.
Incapacity Planning for Pet Trusts
A pet trust allows an owner to exert more control over their pet’s future care, both after the owner dies and during their lifetime if incapacitated. All 50 states and the District of Columbia have a pet trust law. So, take advantage of incapacity planning if you own a pet. These laws vary somewhat, but in general, they allow a pet owner to create a trust and place money in the trust for the benefit of their pets, payable to a named caretaker(s) under the oversight and at the discretion of a third-party trustee. Depending on state law and the type of pet trust, the trust’s instructions can name a specific caretaker and provide authority to the trustee to find an alternative caretaker if the original cannot or will not take possession of the pet.
Pet Care Power of Attorney in Incapacity Planning
Pet owners can also use a power of attorney to plan for pet care during their incapacity.
Pet Incapacity Planning Is Often Overlooked
Your animal companions have a special place in your heart. But do they currently have a place in your estate plan? Even the most detailed and well-thought-out estate plans may fail to include pet care and incapacity provisions. If you have questions about pets and estate planning or need to update your estate plan to cover a new pet, get in touch with our attorneys.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates offices in Glendora and Upland, California. We provide legal services. We cover San Bernardino, Los Angeles, Orange, and Riverside Counties. This includes several cities. Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
