What Happens to Rover When the Marriage is Over?

Too many pet parents believe they’ll outlive their dog, which is understandable, since dogs’ lives go by at an approximate rate of seven years to our one. As a first-time dog mom, I had no idea of this. I realized that dogs’ lives are much shorter than humans’ when I was reading a local paper in the Smoky Mountains. Sadie and I were there working on our first book, and I was drawn to the editorial titled, “Good-bye, Old Friend.” It was the story of the editor’s dog that had died recently.

After graduating from college in Louisiana, the editor packed up everything she owned in her old car and took off for her new job in a rural North Carolina town. Fate intervened on the way out of town when a small puppy ran in front of her car. She stopped and made several inquiries to find the owner of the dog. No one admitted to owning the small, scruffy puppy so she put him in the backseat. Now, sixteen years later, she was mourning his loss. That’s when it hit me—Sadie would most likely die before me. For a year after that, I still believed that I would be the one left grief stricken in the future and never considered that the opposite might happen.

Then one evening my boyfriend Rodney and I were playing ball with Sadie in the parking lot next to my house. The ball bounced off the side of the house and rolled into the street. I ran to get it, but tripped on the curb and fell. Sadie rushed over and began whining and licking me. I was touched by her concern and asked her, “Sadie, what will you do if Mommy dies?”

To which my very wise boyfriend responded, “If you died, I’d have to show Sadie your dead body so she’d know you were gone, and then she’d grieve for a long time.” At that moment I realized I needed to make sure someone would care for Sadie if I should die before her.

Leona Helmsley’s provisions for her dog Trouble are perhaps the most outrageous and generous ever constructed. When Ms. Helmsley died in 2007, she left twelve million dollars to her dog. After relatives refused to care for the dog, the general manager of one of the Helmsley hotels took custody of her.

A judge eventually ruled that twelve million dollars was excessive and trimmed it down to two million dollars. Trouble lived her life out in splendor. The judge was able to make the decision to reduce the amount that dog would receive because a provision exists in more than half of the country’s pet trust statutes that allows courts to decrease the amount of money left in a trust for an animal after the person who created the trust (settlor) passes away if it’s excessive.

Trouble’s caretaker had requested one hundred thousand dollars a year, which would pay for Trouble’s needs, the caretaker’s fee, a security guard, eight thousand dollars for grooming, and one thousand two hundred dollars for food. Trouble died in 2010, but the controversy raged on among the executors of the will demanding accounting for Trouble’s expenses.

State legislatures and the Uniform Law Commission could easily remove the excess funds provision from state pet trust statutes and the uniform codes where it originated; however, the trend is that more states are adopting it. Pet parents need to be aware of this provision when allocating funds in a pet trust. The money left when Trouble died eventually went into a Helmsley Charitable Trust, but the amount was never revealed.

Ms. Helmsley was obviously an excellent businesswoman, but she made two big mistakes in providing for her dog after her death: she failed to choose a caretaker for Trouble before she died, and she left an outrageous amount of money in the trust for Trouble. This was perhaps to send a message to her two-legged relatives who fought over it in court for years. Designating money in a trust for your dog is a good choice, but choosing the person who will best care for your dog after your death is the most important decision you will make for her. It’s also the most difficult. Nothing is easy when thinking about your death, but making sure your dog will be cared for if you die before her is imperative.

We’ll start with the easiest part, setting aside enough money to make sure your dog continues to have medical care and everything else she’s used to after you die. If you’ve learned one thing from reading this book it’s that dogs are property in our justice system. Since they are property, you can’t leave money directly to them any more than you could create a bequest to your house.

Traditional trust and estate law in the United States did little to provide pet parents a way to provide for their pets after their death. Things started to change in 1990, when a provision in the Uniform Probate Code (UPC) was adopted by the National Conference of Commissioners on Uniform State Laws. This signaled a change in the law and included a provision allowing a trust to care for a pet that outlives her owner. Uniform Probate Code Section 2-907(b) included a provision that allowed enforceable trusts for the care of a designated domestic animal and the animal’s offspring.

Section 408 of the Uniform Trust Code (UTC), approved in 2000, updated the provision by referring to a trust for any animal, not just a pet, and authorizing persons with an interest in the welfare of the animal to petition for appointment or removal of an enforcer (trustee) of the trust. That means if the person the deceased named to take care of the money and use it only for the benefit of the pet was mishandling funds, an interested party (someone with a relationship to the pet) could file a court action to have them removed. That’s one reason why it is so important to pick the right person as trustee and caretaker for your dog.

As of December 2015, forty-seven states had adopted one of these model law provisions or their own version of animal trust legislation. A majority of these laws have only been enacted in recent years, as courts have begun to see pets as integral members of families and slowly recognize they are entitled to the same rights as other members of the family, both before and after the death of their pet parent. Mississippi is the latest state to adopt such a law. In 2014, Mississippi created their own state law based on Section 408 of the UTC, set forth below as an example of what you can expect if your state has adopted these laws:

1. A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

2. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

3. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

Kentucky, Louisiana, and Minnesota are the only states that do not have laws authorizing pet trusts. The other states all have statutes similar to the one above.

The trust allows a person to set aside a sum of money to care for the pet. This may occur in regular disbursements of the funds or in the manner the trust specifies. Further, an owner can make specific instructions regarding feeding, housing, and veterinary care. Such provisions are difficult to monitor or enforce. This makes it of great importance that a trustee can be removed. Generally, the trust lasts as long as the last animal named lives. Some owners specify that the remaining money left in a trust after the pet dies should be provided to a nonprofit animal welfare organization. This benefits a worthy animal charity, and it provides no incentive to the trustee to conserve spending the trust money for the dog because they personally will not be receiving the remainder of the money.

This is a complex area of law and pet parents should consult an attorney familiar with the state’s pet trust law. Following are some things to consider and decide before consulting an attorney to create a pet trust:

1. Who do you want to control the money (trustee) in the trust fund for your dog?

2. Who do you want to accept responsibility for your dog and care for her (caretaker)? This can be the same person as the trustee or you can have a different person for each. Remember, the caretaker will have to get money from the trustee for your dog’s needs, so these people need to be compatible.

3. You need to designate an alternate caretaker in case the first one becomes unable or unwilling to care for your pet.

4. Do you want your dog cared for in the same manner as she is accustomed to? Special food, schedules for exercise, and medical care may all be part of the caretaker’s duties outlined in the trust.

5. Where will the money come from to fund the trust? Do you want your life insurance to be used for the trust or do you have money set aside for this?

6. Where do you want the remainder of the money to go after your pet dies? It could go to the caretaker or anyone else you choose. Many pet parents designate that it be donated in their name or their pet’s name to a charity for animals.

After you have considered all these questions and made your decisions, make an appointment with an attorney experienced in animal law. A pet trust created by a competent animal law or estate attorney is the most enforceable means to provide care for your dog in case you die first.

However, creating a pet trust is not the only way you can provide care for your dog. Whatever you choose to do, don’t neglect this important responsibility. You can put a general clause in your will leaving your pet to a person of your choice. This is simple, and if you don’t put this clause in when your will is drafted, you can add it later in a codicil. A codicil is an addition to your will by a separate document that becomes part of your will. Codicils prevent having to rewrite the entire will and are as valid as if they were included in the body of the will.

Here’s one example that you could tailor to your specific needs, either as a clause within your will or as a codicil at a later date.

I give my dog Rover and any other animals I may have that are living at the time of my death to my friend Sally Arthurs, presently residing at 136 Brook Street, PA, 12634. It is my express condition that she treat him as a companion animal, allow him to share her home with her, and provide for all of Rover’s needs including, food, medical care, and anything else needed for his well-being. I leave the sum of $5,000.00 (five thousand dollars) to Sally Arthurs to be used solely for the care and needs of Rover. This will include, but is not limited to, food, treats, medical care, toys, accessories such as leashes and beds, nutritional supplements, and grooming costs.

If Sally Arthurs is unable or unwilling to accept this responsibility, I appoint Charles Edwards, currently residing at 61 Abbey Street, Charlotte, NC, 54321. It is my express condition that he treat Rover as a companion animal, allow him to share his home with him, and provide for all his needs including, food, medical care, and anything else needed for his well-being. I leave the sum of $5,000.00 (five thousand dollars) to Charles Edwards to be used solely for the care and needs of Rover. This will include, but is not limited to, food, treats, medical care, toys, accessories such as leashes and beds, nutritional supplements, and grooming costs. If he is unable or unwilling to accept this responsibility, I direct that my executor shall choose a competent and willing person to assume the care of Rover, and I hereby give Rover and any other animals that I might own at that time to that person. That person shall receive the sum of $5,000.00 (five thousand dollars) and its use shall be restricted to the above conditions.

It is vital that you specify that your dog must be alive at the time of your death if you are leaving money to the person specified as caretaker. Otherwise, even if a person cannot fulfill a condition in a will—can’t take care of your dog because your dog is no longer alive—she would still get the money. This was the situation in a lawsuit with a similar clause. The clause, which ended up creating extensive litigation, stated: “I hereby give $5,000.00 (five thousand dollars) to Irene Morrison, should she survive me, for the proper care of my dog Duchess.”

Duchess died before her owner did, but a Colorado court ruled that Morrison should still get the money.42

Other courts faced with similar situations have ruled the same way. The theory is that the obligation to care for the dog doesn’t arise until after the gift of the money is made, and because it’s not the beneficiary’s fault that she can’t carry out the condition, she’s entitled to keep the gift.

It’s easy for you to prevent a similar result. When writing your will, ensure that you word the clause so it states that the money is given only if your dog is still alive. Here’s an example: “If my dog Casey is living at the time of my death, I leave her and $6,000 (six thousand dollars) to be used for her care to Jack Adams. If Jack is unable to care for Casey, I leave her and the $6,000 (six thousand dollars) to be used for her care to Denise Young. If Casey should not be alive at the time of my death, I direct that the $6,000.00 (six thousand dollars) be given to the Old Dogs Senior Dog Sanctuary.”

Another option is to leave the money to one person and the care of the dog to another. However, this can cause hard feelings. The caretaker might feel you trusted their judgment to care for your dog, but not to handle the money for your dog’s expenses. The caretaker might resent having to ask another person for money for food and vet expenses. If you choose to do this, here’s an example of the clause to use as a guide:

“I leave my dog, Casey, if she is alive at my death, to Jack Adams. If my dog Casey is alive at my death, I leave $6,000 (six thousand dollars) for her care to Karen Adams. I desire that she give her brother, Jack Adams, as long as he has custody of Casey, $100 (one hundred dollars) a month for Casey’s care. In addition, I also desire that she use the money to pay Casey’s veterinary bills or reimburse Jack Adams for any veterinary bills he pays for Casey’s care.”

Remember that legally, the six thousand dollars goes to Karen outright if Casey is alive when you die. The instructions about how to use it aren’t legally enforceable, but they make your wishes clear, which should be enough if you choose the right people.

It’s often difficult to find a person willing to take on the responsibility for your pet. Many friends and relatives are great as weekend dog sitters or helping out if you’re sick. Asking them to assume full responsibility for your pet is a different story, since your pet will be going through a huge adjustment and may grieve for a long time. Realizing this, many pet groups have developed programs to work with pet parents and agree to accept custody of pets upon the death of the owner.

The San Francisco SPCA Sido Program finds loving homes for its members’ pets that are left behind when their pet parent dies. The program is named after Sido, a dog that was slated to be euthanized after the owner died. Anyone who is approved and gives a good home to a pet that has lost its owner receives free veterinary care for the life of the dog at the San Francisco SPCA Veterinary Hospital.

Other organizations offer similar programs. The Washington Animal Rescue League helps by finding new caretakers for the pets of donors who are incapacitated or deceased. The organization’s Guardian Angels Program provides assurance to pet parents. While membership is not required, pet parents are asked to make a five-thousand-dollar contribution for the first pet and one thousand dollars for each additional pet. A large portion of the donation/fee is tax deductible.

Similar programs can be found at universities, such as the Perpetual Pet Care Program at Kansas State University College of Veterinary Medicine and the Stevenson Companion Animal Life-Care Center at Texas A&M University. Research to see if a similar program is available in your area.

Whether you use a will, a codicil to a will, a pet trust, or an informal agreement, choosing the right person to care for your dog following your death is an important decision and should not be made quickly. Love you, love your dog is not always the feeling of relatives who find themselves with a dog they hadn’t planned for. If you don’t name a new owner in your will or trust, one of two consequences will result.

• If you have a will, your dog will go to the residuary beneficiary of your will (the beneficiary who inherits everything that’s not taken care of by the rest of the will).

• If you don’t have a will, the dog will go to your next of kin, as determined by state law.

This could be the sister who is highly allergic to dogs or another relative who lives in a small apartment and travels constantly for work. They could be someone who simply doesn’t like dogs. So, unless by fate the person is suitable, they will most likely not be the person you would have chosen.

If you’re lucky, you know immediately whom your dog will be best cared for and most welcomed by. Whether you know immediately or not, you must be sure to ask this person if they would assume this responsibility before you name them in a will. Also, you should have a list of things that would be expected of them. Hearing that they’ve inherited a dog and its care at the reading of your will is not the best way to find this out. You must discuss your plans and what you expect of the proposed caretaker with them. Even if they love your dog, there could be reasons that would make it difficult or impossible for them to make your dog a part of their life. Here are some guidelines to use when choosing a custodian for your dog.

1. First, this must be a person your dog knows and likes. No matter how much you like someone, if your dog doesn’t, this will never be a good situation.

3. The person should have experience in caring for dogs and has previously cared for your dog.

4. They should have similar living conditions to what your dog is used to: for example, a fenced yard, able to come home for lunch or take your dog to day care if she’s used to that, allow her to sleep with them, and other things your dog is accustomed to.

6. They must have similar beliefs about the roles of dogs in society and not that they are merely a piece of property.

7. They must be someone who treats their own pets in a manner that you approve of and understands your plan for your dog’s end-of-life care and final arrangements.

8. If they have children, see how they interact with your dog. If your dog has not been around children, this might not be a good situation for her.

9. This should be a person you are in regular contact with so that you will know if any of the conditions in their life change that would affect them being able to care for your dog.

10. Trust your gut, but not your relatives. Never assume a relative will be the best choice for your dog. Don’t allow personal “family feelings” to influence your choice for the best person to care for your dog.

Ensuring that there will be a minimal amount of change in your dog’s day-to-day activities after she loses you will make things easier for all involved. Dogs grieve. They may not eat for days and could become depressed. Choose the right person carefully to help your dog through this difficult time.

The story of how the dog of a newspaper heiress stayed by her bedside for weeks while the woman was dying is legendary in Charleston, West Virginia. The dog had to be led outside almost forcibly to go to the bathroom, and her meals were brought to the woman’s bedroom. After the woman died the dog remained in the bedroom while the body was placed on a gurney and removed. The dog followed the gurney to the top of the stairs and lay down and watched her beloved dog mom be taken away. The dog never left that spot despite urging from everyone. She would not be moved. Three days later, she died.

Choose carefully who will make this transition for your dog the gentlest possible. Obviously, this has to be a person you trust. In addition, you need to be confident this person will use the money as directed for the care of your dog. Once the will is probated and your estate is distributed, there is no one to ensure the chosen caretaker is carrying out your wishes.

As a lawyer, I’ve drafted many wills. After I created a will with provisions for my dog Sadie, it became standard practice for me on my “will checklist” to ask the clients what provisions they wanted to make for their pets. Most clients were glad to know they could do that, and it gave them comfort. However, I was quite surprised when one of my clients had a completely different plan for his pets if he should die before them. He wanted them euthanized.

At first I thought I misunderstood him, but he made it quite clear that his dogs were to be humanely killed at the time of his death and cremated with him. He had no relatives or close friends he felt he could depend on to provide care for his dogs. Since he had no relatives, I suggested he ask his veterinarian to find homes for his two dogs. He disagreed. I offered to take his dogs and find them good homes, but again he refused.

It’s normal for pet parents to be anxious about the care of their dogs following their death. Many of us worry and make several calls to boarding facilities if we board our dogs for a weekend. There will be no calls and no control for the well-being of our dogs once we have died, so it all must be carefully planned beforehand.

I feel people take this fear to the extreme when they decide to euthanize their pets because they have no one to care for them or believe no one will be able to care for them adequately. If a pet parent puts this request in a will, there is a chance it could be ruled invalid if challenged. This happens particularly if the dog is young or in good health and other alternatives are available.

Of course, there are cases when euthanasia could be appropriate if the dog is very ill and requires extensive treatment for a health condition that will not improve. A serious illness coupled with the stress and grief of losing a pet parent may be unbearable for an older dog. I can’t make that decision for anyone, and I found that I couldn’t facilitate it for my client either. I offered to get another attorney to write his will.

My own dog Sadie is now fourteen years old. I watch her closely for the slightest sign that she is slowing down or that I am expecting too much of her. As much as I dread the time when she will leave me, I will be at her side, God willing. If not, I am peaceful that arrangements have been made for her to be taken care of by a person who at least will make an attempt to love her as I have and is wise enough to know that he will never accomplish that. He knows that she will miss me terribly, but he will comfort her in every possible way.

I’ve made sure this person knows her routines, her food preference, her love of the beach, and her fear of storms and loud noises. He knows she gets a treat for everything from finishing her dinner to going outside for a “peester” and after every bath. He knows she must be allowed to chase seabirds and dig a hole to rest in the wet sand. He knows Sadie and I have been a pack of two and has been content to love us as a package deal.

I cherish each moment with Sadie while I hear time ticking away seven times faster for her than it does for me. I want to be the one to take her on that last trip to the ocean, sleep beside her that last night, and hear that last soft breath. However, if I’m not, I rest assured that I will be with her in her heart and that in those moments I’ll be with her in spirit and it will be me waiting for her at the Rainbow Bridge instead of the other way around. Plans are never certain, but my plan is that someone who loved me and loves her will be there sending her to me. I wish the same for you and your precious canine companion.

Knowing the love of a dog is one of life’s greatest blessings and one of great responsibility. Keep your dog safe, know the legal rights you have as a pet parent and your dog has in our society, and you will live a life unimagined together. I know of no other constant source of joy that life has bestowed on me than my amazing dog, Sadie. The blessings of a canine soul mate far outweigh the duties and obligations. What happens to your Rover depends completely on you.