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Can a Will Require Pets to be Euthanized After the Owner Dies? Estate Law in PA

December 28th, 2017

By Kathleen M. Tana

Can a Will Require Pets to be Euthanized After the Owner Dies? Estate Law in PARecently, a young lawyer was contacted by a client with a question. The client was a newly graduated veterinarian who had been approached with a request to euthanize two healthy dogs. The request was pursuant to a provision in the deceased owner’s will. The owner had just died and his will provided that his two (perfectly healthy) pet dogs be euthanized, cremated, and buried with him.

Despite the efforts of several individuals and a rescue group, the executor felt compelled to, “…honor my friend’s last wishes and keep my word.”

Although the veterinarian in question was not involved, the pets were euthanized that same night. The consensus of those involved was that the executor was concerned that the matter might become more involved and that he might become entangled in litigation, and therefore chose to act before he was prohibited from doing so.

An analysis of case law on this issue shows a general consensus across the United States regarding the approach taken by the courts.

When a testator provides in his/her will for the destruction of an otherwise healthy pet, the matter has come to the court by one of several methods. An executor can petition for a declaratory judgment; in essence asking the court to tell the executor whether or not they must honor this provision in the will. In other cases, the issue may be brought to the attention of the court at the request of an animal rights or protection group such as the SPCA. Often, the court case is surrounded by a good deal of publicity.

Issues regarding pet euthanasia in wills.

The analysis by courts in estate cases where the decedent has willed that the pet(s) be euthanized seems to turn on the response to one or more of the following issues:

1. Whether the destruction of the animal is contrary to public policy?

2. Whether animal protection statutes oppose the killing of an otherwise healthy animal as a form of cruelty?

3. Whether the killing of the animal can be shown as the true intent of the testator?

Pennsylvania has dealt with this matter in a case which is often cited in other jurisdictions because of the comprehensive analysis provided by the court in Allegheny County. This was a case in which the will provided for the destruction of the testatrix’ two Irish setters after her death. Her executors petitioned for a declaratory judgment from the court; in essence requesting the court’s direction as to whether or not they were compelled to follow the provisions of the will, thus euthanize the dogs.

The relevant provision of the will stated, “…I direct that any dog which I may own at the time of my death be destroyed in a humane manner and I give and grant unto my Executors hereinafter named full and complete power and discretion necessary to carry out same.”

The court found that the questioned paragraph of the decedent’s will, providing for the destruction of the two Irish setters is, “…void as not being within the purview of the Wills Act of the Commonwealth of Pennsylvania, and being against the public policy of the Commonwealth of Pennsylvania.”

This decision, while clear and unambiguous, only deals with the limited situation where a declaratory judgment has been filed, and where the motion comes from the executor. There is no specific guidance in situations where an animal rescue group wishes to intervene on behalf of a pet, or where, as in the case detailed earlier, the executor is in favor of the destruction of the animal.

How to protect your pets in Pennsylvania after your death.

If you are looking to protect your pets after your own death, there are steps you can and should consider.

1. Durable or Limited Powers of Attorney – Generally, a Power of Attorney authorizes an “agent” to manage personal assets of the “principal”. These assets would include personal property of the principal and this category would include pets. This Power of Attorney allows the agent to care for the pets while the principal is still alive. A separate document can be drafted, giving someone temporary or emergency power to care for your pets.

2. Trusts – Pennsylvania has allowed trusts for pets since 2006. They are known as “honorary trusts” and are a method to provide financial support for a decedent’s pets.

3. Last Will & Testament – Lastly, a pet owner can simply provide for his or her pet in their Last Will & Testament. It is important to remember though that because a pet is still considered to be property, the pet cannot inherit property but steps can be taken to provide for their future.

It is clear that the only sure safeguard which will protect companion pets after the death of the owner is a statutory provision making it void as against public policy to provide for the destruction of a health pet in one’s will, and rendering any such provisions in wills as unenforceable.

For more information, please contact the Domestic Relations and Family Law attorneys at Willig, Williams & Davidson at (800) 631-1233.

 

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