Dog Law - Level 2
Pets as Property
Learn about how the law views dog ownership in situations of divorce, wills and trusts and other scenarios.
By Lynn M. Hayner
Although owners may view their dogs as part of the family, our laws say otherwise. Legally, dogs are categorized as property. In fact, they are classified in the same category as our jewelry, our power tools and our furniture. But are there laws that require us to treat our chairs or wristwatches in a “humane” manner? Of course not. Our animal welfare laws that protect our dogs clearly evidence something inherently unique about our dogs as a category of property.
Your dog may be your most valued property, and you may have spent considerable money on his care, but you’ll likely be surprised at how little compensation you receive if he is harmed. If someone injures your dog, you may indeed be entitled to damages — even if the harm was accidental. But rather than receiving commensurate compensation for your dog’s injury or loss, most owners will only receive the replacement cost, or fair market value, of their dog.
This antiquated valuation system often limits an owner's recovery to a small amount of money, and doesn’t take into account the veterinary care expenses stemming from injury, or the mental and emotional anguish resulting from the dog’s loss.
Some courts have allowed recovery for damages that exceed the animal’s market value, especially where the harm is intentional. The law is evolving in this area, with animal valuation a hot topic. Remember, however, that because a dog is classified as property, no separate cause of action recognizes the pain or suffering of the dog himself.
Wills and Trusts
Owners concerned about their dog’s care after their own death may try to leave money to the dog in a will. Dogs, however, cannot hold property; a bequest to them directly will not hold up in court. Luckily for caring owners, estate planning to provide for companion animals is an emerging legal topic. All 50 states recognize a traditional pet trust. Owners can set up a trust leaving the animal to a guardian, and designating money to cover the animal’s lifetime expenses.
Most states now also have statutory pet trusts. A statutory pet trust is easy to set up, allowing an owner to simply leave for example “$1,000 in trust to the trustee [X] for the care of my dog Spot.” State law can then fill in the specifics as to the terms of the trust. For example, the recently enacted Oklahoma statute provides that “… the instrument creating the trust shall be liberally construed to … carry out the general intent of the transferor [the intentions of the deceased owner of the pet].”
Divorce and Custody
Couples divorcing may disagree on who takes the family dog, much as conflict may arise over child custody. Since dogs are property, the spouse who purchased the animal may have an edge. But courts are beginning to recognize that dogs, unlike inanimate possessions, have relationships with their owners that require a more flexible legal approach.
For example, a court may be willing to hear evidence that one spouse was the primary caregiver of the pet, even if he did not purchase the pet originally. Shared custody arrangements may be worked out between the spouses, similarly as joint custody for children.
Because a dog is classified as property, he clearly has no cause of action in our court system. Advocacy by humans for the benefit of the animal is often hampered by lack of standing. In our court system, legal standing requires injury in fact (you were hurt), caused by the defendant (the one you are suing), and redressability by the court (meaning, if you sue and win, this particular court can make an order that will help you).
Lawsuits brought by animal welfare advocates on behalf of animals may fail to meet the injury-in-fact requirement because the group doesn’t sustain a direct injury – the animals do. Arguing that an animal has been injured is not sufficient to establish standing.
Animal Welfare Law
Animal welfare laws, stemming from our compassion for animals, provide some protection for dogs. For example, the promotion of dogfighting is a felony in all 50 states. Some cities in their animal protection ordinances may regulate the chaining of dogs. But again, the dog himself receives no compensation for his injury.
Humans, however, may be punished for violation of these laws. A growing number of centers, such as the DePaul Center for Animal Law in Chicago, actively support the enforcement of stricter penalties for animal abusers while also exploring the disparities between the legal protection afforded animals, and the protection advocated by a growing percentage of Americans.
Contributing source: Emily Winfield, associate attorney, Winston & Strawn, Chicago, IL
Lynn Hayner, J.D., a retired attorney and historian, is a contributing editor with DOG FANCY. A lifelong owner of German Shepherd Dogs, she enjoys exploring the development of animal law in our society.
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