Pets as Property: Testamentary Freedom vs. Public Policy

Some people consider, and treat, pets as their children. We love our furry friends and care for their well-being. Pets can, and often should be, part of an estate plan (Illinois even allows for pet trusts — a topic for a future blog).

But there is an important legal distinction between pets and children. Namely, pets are considered personal property. Children, of course, are not. This is why a designation of guardian for minor children is not absolute. Since children are not property, they cannot be simply given away — the best interests of the child must be considered. The same does not hold true though for pets. A pet is property that you can generally bequeath as you wish.

But what if your wish is for your dog to be ‘euthanized’ and buried with you?

That question was at the heart of a news story out of Indiana late last year, with the fate of Bela the dog in the balance. Connie Ley had provided in her will that if heir nine year-old German Shepherd, Bela, could not be transported to Best Friends Animal Society in Utah, that her dog instead should be put to sleep, cremated and the dog’s ashes be placed with her own ashes. The ultimate decision was to be in the hands of the executor.

Meanwhile, the story made the news and a public campaign to Save Bela went viral. The cause got its own Facebook page and #SaveBela trended on twitter. People questioned whether it was appropriate for a seemingly healthy dog to be ‘euthanized’ based on the terms of a will.

The attorney for the executor stated that “Outsiders don’t have the grounds to rewrite the provisions of my client’s will and impose what they want.”

Ultimately, an agreement was reached for Best Friends to receive Bela and the probate court did not get involved. Sadly, within a month of Bela’s arrival, he was diagnosed with an aggressive cancer and did have to be euthanized.

But what might a court do if confronted with this question? Professor Gerry W. Beyer prepared a short white paper entitled “Pet Destruction Instructions.” Professor Beyer cited cases showing that courts are “extremely reluctant to enforce animal euthanasia provisions,” particularly for healthy animals. One court noted that “while a property owner may freely ‘dispose’ of property, the owner has no power to order the destruction of property, be it a pet animal or any other type of property.”

There was a similar case a few years ago in Cook County. Fifth Third Bank, as executor, asked Judge Susan Coleman to set aside a provision in a will providing for euthanasia of an 11-year old cat, Boots. Fifth Third’s lawyers argued that “It would violate public policy to euthanize a healthy housecat where an appropriate shelter has been identified.” Judge Coleman agreed, and Boots was spared.

While wills and trusts are generally enforced without regard to subjective ideals, courts can exercise authority to set aside provisions that violate important aspects of public policy. For example, provisions that are deemed to encourage divorce may be set aside.

My opinion: I’m all about testamentary freedom, but arbitrarily ending the life of a healthy pet that someone is willing to care for is not ‘euthanasia,’ and it’s wrong.

What do you think? Should a testator be allowed to instruct ‘euthanasia’ of a healthy pet, or is it morally and ethically repugnant? Should a “best interests” standard apply to the testamentary disposition of pets? Let me know in the comments.