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Frances Foster, Should Pets Inherit?, 63 Fla. L. Rev. 802 (2011).

I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement.  After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again.  Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.

Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship.  As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships.  She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.”  In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law.  As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet?  However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets.

I will admit that I approached the article with some skepticism.  It is one thing to enforce provisions in wills leaving money for the care of a pet as some courts have done, or to eliminate obstacles to enforcement of pet trusts as forty-six jurisdictions have done.  As Professor Foster concedes, as a result of legislative reforms, revocable trusts, pet retirement homes, and other mechanisms, Americans (at least those who have the foresight and resources to consult lawyers) are increasingly able to protect their pets through careful estate planning.  Although these reforms are not perfect and their lack of uniformity leaves many legal questions unanswered and many pets unprotected, it is quite radical, many would say, to address the law’s shortcomings by granting pets the right to inherit.  This is exactly what the law must do according to Professor Foster because, as the article demonstrates, current inheritance law does not only harm pets.  Rather, the law’s failure to recognize Americans’ wishes to provide for their loved ones affects both the human and non-human objects of their bounty.

Professor Foster argues that the law should look to the decedent’s intent to provide for her pets as evidenced in a will or other written instrument (whether validly executed or not), oral statements, and the decedent’s “acts, state of mind … and intensity of feelings.”  Courts would be guided by the decedent’s intent to provide for her pets, even at the expense of human family members, and the court would be bound by the amount devised for the care of pets even if it exceeds the amount needed for their care.  In other words, Leona Helmsley’s dog Trouble would be entitled to enjoy the standard of living that a $12M inheritance can buy.

Under Professor Foster’s proposal, pets would inherit even in cases where there is no clear evidence of decedent’s intent to provide for them.  In determining whether a pet will inherit, courts would focus on the relationship between a particular decedent and the pet “claimant,” including its duration, frequency of contact, interaction, emotional bond, and decedent’s care of the pet.  Was the pet well-fed, groomed, and housed?  Did it enjoy quality medical care, exercise, and luxuries not available to most pets?  Courts would also look at what the pet provided to decedent—companionship, affection, better health, and service.

Given that only one-third of American households have children living with them but two-thirds have pets, I am persuaded that the law should honor decedent’s wishes to care for their animals.  However (as all Jotwell articles must), the article raised a host of questions that I hope Professor Foster will address in future work.  First, should pets inherit when decedent had a will but failed to provide for the pet?  Should an elective share or omitted pet provision apply?  Second, is it wasteful to honor decedent’s wishes to leave excessive amounts (see Trouble example, above) to their pets?   The law will not enforce decedent’s wishes for her executor to burn her cash because it is wasteful.  Isn’t $12M for a pet its equivalent?  Third, is it efficient from a judicial resources standpoint for pets to inherit when a decedent died intestate and there is no clear evidence of intent to provide for them?  One reason the family paradigm is so entrenched is its ease of administration.  One simply looks at the intestacy statute and determines who inherits without any need for individualized determinations in most cases.  Should we expect judges to examine how close decedent was to his pet and how much the pet enriched his life when there are many other pending cases on her docket?  I agree that an individualized approach “would align inheritance law with current societal views or family and pets.”  Nonetheless, I am afraid that given the law’s continued focus on family status rather than actual relationships even in cases where the claimant is a person, invoking Americans’ close relationships with their pets may do little to challenge the family paradigm.

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Cite as: Solangel Maldonado, Protecting the True Objects of Decedent’s Bounty—Pets Included, JOTWELL (March 28, 2012) (reviewing Frances Foster, Should Pets Inherit?, 63 Fla. L. Rev. 802 (2011)),