Byline: Pamela H. Sacks
Diane Sullivan is devoted to her dogs, Winnie and Whitey, and she's counting on her brother to give them a home if anything should happen to her and her boyfriend.
Ms. Sullivan's brother, Michael Leamy, a professor at Fitchburg State College, has told her that she need not worry. But Ms. Sullivan, 53, knows that her brother and his wife have a new baby and their circumstances could change.
"I talk about it constantly to him because I need reassurance," Ms. Sullivan said. "He knows that's the thing I really care about."
Ms. Sullivan is a professor of animal law at the Massachusetts School of Law. She knows that, as a Massachusetts resident, she is limited in what she can do to protect Winnie and Whitey if she should become incapacitated or die.
Ms. Sullivan would prefer to go the legal route and set up a trust with her pets as beneficiaries. But Massachusetts has no statute allowing a pet to benefit directly from a will or a trust. In contrast, 36 states and the District of Columbia have provisions validating pet trusts that make such bequests enforceable in court. Otherwise, such trusts are merely "honorary."
Many people who seek to ensure that their pets will be taken care of are unaware of the situation. Ms. Sullivan often gets calls asking her to draw up wills or trusts that guarantee the future of companion animals.
"I have to explain the status of Massachusetts law - that there is nothing legally enforceable," Ms. Sullivan said.
Some states have passed their own laws, but many have adopted a pet trust provision that is part of the Uniform Trust Code. When a national commission was revising the code nine years ago, the Animal Legal Defense Fund, a California-based group, introduced the pet trust provision. Lawyers with the group had seen honorary trusts ignored time and again, said Joyce Tischler, the founder and general counsel of the ALDF.
Ms. Tischler recalled a woman who set up a trust for her dog and left her lawyer responsible for carrying out her wishes.
"He bought himself a new car with the money, and he let the dog ride in the car from time to time," she said. "His license to practice law was lifted for that."
Adoption of the Uniform Trust Code, a massive document with a wide range of trust provisions, was introduced in the Massachusetts Legislature in early 2007. The bill was held for further study by the Joint Judiciary Committee, effectively killing it. Donna Turley, a Boston lawyer who specializes in...