Couples who decide to skip having children often end up instead creating a “fur family,” by adopting any number of beloved pets. As of 2019, Seattle was a city with more dogs than children living in it – and the proportion of dogs to kids is likely to have only increased with pandemic puppy adoptions. A couple in love with each other and a fluffy labradoodle may not give a second thought to what happens to Rover if their relationship becomes rocky. Many people consider pets to be members of the family. Legally speaking, however, pets are not treated like family.

A recent Washington Court of Appeals decision looked at whether a court can order visitation rights for dogs in a divorce, like a shared child custody plan. The conclusion? A resounding no. The Court of Appeals ruled that the lower court lacked the legal authority to grant visitation rights for pets in the divorce.

In the case, Niemi v. Niemi, Mariah and Douglas Niemi adopted two dogs, Kona and Mr. Bear, in what turned out to be the sunset phase of a 27-year marriage. When the marriage fell apart, Mariah moved into an RV park, and the dogs remained with Douglas in the former family home. Mariah visited the dogs several times a week and sometimes brought the dogs to stay with her in her new home. When Douglas filed for divorce, he asked the court to grant him custody of the dogs, arguing that they should not be separated (as Mariah had proposed) because the dogs were a “bonded pair” and offered instead an informal visitation agreement with Mariah regarding the dogs. Mariah asked the court to issue an order granting her visitation rights for the dogs, if the court awarded both dogs to Douglas.

The trial court indeed awarded both dogs to Douglas, as his separate personal property, but it granted Mariah regular visits and provided a schedule for those visits. Douglas appealed the part of the order granting Mariah visitation rights, arguing that the court did not have authority to order him to make Kona and Mr. Bear available to his former spouse for visits, because the dogs were legally his personal property. The Court of Appeals agreed with Douglas. In its opinion, the court concluded: “Washington common law has not recognized animals as a special category of property. To the contrary, our courts historically and consistently have characterized animals, even family pets, as personal property. … our legislature has adequately provided for the distribution of personal property in RCW 26.09.080. That statute contains no provision for pet visitation.” In other words, pets are personal property and cannot receive special treatment from other types of personal property in a divorce.

In estate planning, however, pets can receive special treatment from other types of personal property. Washington law authorizes the creation of trusts for the benefit of animals at RCW 11.118.020, which provides as follows:

A trust for the care of one or more animals is valid. The animals that are to be benefited by the trust may be individually identified, or may be identified in such other manner that they can be readily identified. Unless otherwise provided in the trust instrument or in this chapter, the trust will terminate when no animal that is designated as a beneficiary of the trust remains living.

Without this statute, a trust for the benefit of an animal would not be valid, due to animals’ legal status as personal property. A pet trust allows a pet owner to allocate assets for the long-term care of their animals, and to provide a mechanism to ensure that funds intended to be spent on the care of their pets are indeed spent as directed.

There are strong arguments in favor of granting pets special status under the law different from other types of personal property outside an estate planning context. Unlike a dishwasher or television, animals are alive – requiring care, feeding, shelter, and companionship – and, with all due respect to houseplants, uniquely capable of forming bonds with people that differentiate pets from other categories of personal property. For disputes over pet custody to be resolved differently from the case of Kona and Mr. Bear, Washington would need change the legal status of pets as personal property. Washington’s statutes authorizing pet trusts provide an example of how the law can evolve to reflect changing attitudes towards animals.

Interested in learning more about pet trusts? We’re happy to help!

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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