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Under bill, if owner dies, trust can ensure pets' care

May 27th, 2003, 07:12 AM
Dover Bureau reporter

Delaware is poised to join a growing number of states that allow pet owners to establish caretaker trusts to provide for their pets if the owners die or are incapacitated.

It is a move that could go a long way toward preventing the deaths of some pets whose owners can no longer care for them, experts said. Many pets are euthanized each year after their owners die, shelter operators said.

House Bill 31, sponsored by Rep. Nancy Wagner, R-Dover North, would let Delawareans set up a trust for Rover or Fluffy, just as they now can set up a trust for their children.

The trust would designate a person to act as caretaker for the pet and set aside money for that purpose. Depending on the terms of the trust, any money remaining after the pet's death could go to the caretaker, a charity or to someone else.

Mary Mayne, a Frankford resident who has taken in homeless pets for two decades, said the measure could help prevent the single biggest reason pets end up on her doorstep. She takes in about 40 animals each year.

Wagner said she decided to introduce the bill after reading about similar legislation in other states. Of Delaware's neighboring states, only New Jersey has a pet-trust law.

"It's really something that people think they can do," Wagner said. "They want to be able to leave money for their pets, and when I looked around I found you couldn't do that in Delaware. Your other option is to leave it to Uncle Bob or somebody and say, 'Please, take care of my pet.' "

Mayne said pet owners often mistakenly assume their pets will automatically be taken care of when they die.

"But maybe the family doesn't care. Grandma treated it like a kid, but some of the family doesn't care," Mayne said. "It's heartbreaking."

Kevin Usilton, executive director of the Delaware Humane Association, said his agency often winds up with animals from people who have died.

"Nobody wants to assume ownership of the animal," Usilton said.

Mayne said she has visited nursing home residents who had to give up their pets.

"They cry and cry and cry because they've had to euthanize them," she said.

Without the proposed bill, creating a pet trust is a risky proposition.

In states without pet-trust laws, heirs have successfully challenged trusts that provided money for pets. Some courts have held that without a human beneficiary, there can be no trust. Others have held the trusts to be unenforceable.

The Internal Revenue Service also does not recognize the validity of pet trusts. According to the IRS, pets are property - and property cannot hold title to another piece of property.

Bethany Beach resident Connie Marshall took the option of leaving money in her will to a friend who pledged to take care of her pets. The friend made the same provision in her will.

"I set aside X number of dollars for the care and welfare of the pets. Then, if the pets croak, she can have the money," Marshall said.

Marshall, who owns two dogs and two cats, said the bill is needed to allow people a more secure avenue for providing for their pets.

"First of all, people don't think they're going to die. Get a grip," Marshall said. "The issue of your pets still needs to be addressed. It's a living, breathing thing that absolutely needs to be taken care of."

The legislation passed the House unanimously and is in the Senate Judiciary Committee.

The pet-trust issue also is being taken up by Congress through legislation that would permit pets to be cared for through what are known as charitable remainder trusts.

Charitable remainder trusts pay income to the people establishing them during their lifetime. When they die, the remaining principal goes to a charity or designated beneficiary. The federal bill would allow pets to be beneficiaries.

That bill died in committee in the last Congress, but sponsor Rep. Earl Blumenauer, D-Ore., said he expects to reintroduce it.

Sara Amudson, deputy director of the Doris Day Animal League in Washington, D.C., said congressional action is needed to avoid the potential problems posed by many different state regulations. The nonprofit group lobbies for laws for the humane treatment of animals.

"We've got a sort of byzantine tax code as it is, so these things require some serious education on the part of members of Congress," Amudson said.

Passage of legislation in Delaware and other states could help provide momentum for the federal legislation, she said.