New York joins Alaska, California, Illinois, Maine and New Hampshire in enacting pet custody laws. Under the New York “pet custody” legislation enacted on Oct. 25, 2021 and effective immediately (S.4248/A.5775), courts will now be required to consider the best interests of “companion animals” when awarding possession during divorce or separation proceedings. Companion animals include dogs, cats, and other domesticated animals. The “best interests” standard is the standard that is used to determine child custody issues.
The New York legislature recognized the important role pets play in our lives by authorizing Pet Trusts (EPTL §7-8.1) since 1996. Previously, the traditional view in the United States has disallowed animals to be the lawful subject of a provision in a will or trust. The Uniform Probate Code (“UPC”), which authorizes a trust for care of a pet and its offspring, has been adopted in Alaska, Arizona, California, Colorado, Michigan, Montana, Missouri, New Mexico, New York, North Carolina, Tennessee, Utah, Florida, Iowa, Nevada, New Jersey, Oregon and Wisconsin. Under the UPC, a trust for the care of an animal is specifically allowed along with the authorization for the courts to appoint someone to enforce the trust. Thus a pet becomes a legally relevant being, one who has income and assets which must be protected within the legal system. The best way to provide for a pet is to create a living or testamentary trust which requires the trustee to make distributions to a human beneficiary to cover the pets expenses, provided that the beneficiary is taking proper care of the pet. The trust provisions should specify the caretaker, trustee, property in the trust, standard of living, distribution of money, remaindermen, identity of the pet, inspection of the pet and funeral arrangements.
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