Frances H. Foster, Should Pets Inherit?

63 Fla. L. Rev. 801 (2011)|

ARTICLE :: On August 20, 2007, billionaire hotelier Leona Helmsley died, survived by her brother, four grandchildren, twelve great-grandchildren, and her beloved companion of eight years, a white Maltese dog named Trouble. One week later came news that shocked the world. Helmsley left $12 million to Trouble.


Across the globe, reporters, readers, lawyers, and law professors alike greeted the news with outrage and derision. Critics called the legacy “obscene,” “ridiculous,” and, as lawyer Mickey Sherman put it, “an amazing waste of money.” In a letter to the editor of her local newspaper, a Rochester woman expressed her disgust at Helmsley’s decision, noting that the $12 million “could have provided 100 homeless families a house or 100 deserving kids a college education[,] . . . fed a small nation or served thousands of neglected children.” A University of Texas columnist reminded her readers that dogs are “notoriously bad money managers [and] . . . lack the opposable thumbs necessary to use a calculator or the computer skills to do their banking online.”

However, Helmsley’s long-time rival, Donald Trump, provided a very different perspective. On hearing the news of Trouble’s $12 million inheritance, he released the following statement: ‘“The dog is the only thing that loved her and deserves every single penny of it.”’ Helmsley’s former housekeeper, Zamfira Sfara, was also not shocked by Trouble’s good fortune. Indeed, she reported that the bond between Helmsley and Trouble was so close that when Helmsley left her hotel penthouse, “[t]he dog would stay by the door, lying on the floor for three hours, waiting for her to come. It never moved.”
This Article argues that Trouble—and the millions of American pets like her —should inherit. For many Americans today, their pets, not their human family members, are their nearest and dearest.

In earlier work, I have argued that American inheritance law is trapped in an outdated family paradigm. That paradigm assumes that the decedent’s closest relatives by blood, adoption, or marriage are the most deserving recipients of the decedent’s estate, the so-called ‘“natural objects of the decedent’s bounty.’” Using a humanistic approach, I have shown that this abstract vision of “natural” wealth distribution permeates law and decisionmaking and creates significant human costs. By ignoring the actual relationships between decedents and survivors, the family paradigm excludes the very people a particular decedent may have valued most—those connected by affection and support rather than by family status. This Article extends my critique. It argues that the family paradigm also fails to recognize survivors many Americans regard as their closest companions, friends, and even family—their pets.

Part II presents my critique of the family paradigm. It shows how that paradigm excludes decedents’ nonhuman as well as human loved ones. The result is an inheritance system that defeats decedents’ wishes and leaves their most beloved companions unprotected.
Part III turns to recent reform strategies. It analyzes those strategies as pursuing three main goals: (1) enforcing pet care arrangements on an ad hoc basis; (2) improving legal mechanisms to provide for decedents’ pets; and (3) redefining the legal status of pets. Part III concludes that these strategies offer only partial solutions because they fail to challenge the family paradigm.

Part IV offers a new approach. It attacks the very foundation of American inheritance law—the narrow status-based definition of “natural objects of the decedent’s bounty.” Drawing on recent studies, this Part demonstrates that many Americans are now as close or closer to their pets than their human family members. Part IV then considers possible new directions for an inheritance system that regards inheritance by pets as “natural.” Part V concludes that reformers must look beyond the family paradigm’s abstractions and develop more individualized approaches that encompass a decedent’s actual natural objects―be they human or nonhuman.

Read the full article via the links at the top of this post.

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