Last week we discussed the significant legal hurdles that have existed in using a trust, will, or other gift to leave money for the care of a pet. As we said, courts have often refused to enforce pet owners’ attempts to protect their pets in this manner. The problem arises because animals are “property” under the law, thus incapable of owning or holding title to money or property. As such, an animal can not be a beneficiary under a will or trust, or receive a gift of money.

     The issue is also complicated because if money is left to a person in order to care for a pet, the person would owe the pet a duty of care, but a dog, cat, bird, or other animal cannot go into court to complain the duty is not being carried out or the money is being squandered.

     May states have now passed legislation addressing this issue. However, although legislation has been introduced in Oklahoma, Oklahoma has not yet passed such a law. Moreover, no Oklahoma cases have specifically addressed this issue. There is thus some risk any attempt to make such a gift will fail.

     However, legal scholars have observed that because an Oklahoma court has recognized a contract for the care of an animal is enforceable, a trust for the care of an animal may also be valid. Moreover, with proper drafting, it is likely if a court finds the gift is unenforceable as a matter of law, your estate will be no worse off than if the gift had not been attempted. As some scholars have recognized, most such gifts are uncontested, because the amount of the gift is simply not large enough to warrant litigation. In fact, gifts that are too large may be set aside because a court will deem it to have been intended to take advantage of tax benefits, rather than to provide for a pet.

     In Oklahoma, there is thus no clear answer . However, an attorney experienced in estate planning may be able to assist you in finding a way to increase the likelihood your pets are properly cared for.