Estates & Wills & Trusts, Family

Looking out for pets amid divorce and estate planning

By Kathy Bockus, AdvocateDaily.com Contributor

It’s only a matter of time before society's popular opinion changes the law that relegates pets as property, predicts Toronto lawyer Elinor Shinehoft.

"Animals are currently considered personal property — it's never been changed," says Shinehoft, who focuses on family law and estate planning at Shinehoft Law.

Under the law, pets are likened to inanimate objects like paintings or cars, despite the fact that most people treat them as members of the family, she says.

"I think it's going to start affecting people more and give a push to change the legislation to reflect a more modern view of pets," she tells AdvocateDaily.com.

Shinehoft says she believes pets possess human-like traits.

"They have affection and feelings. They have a mind and make choices. I think you need to take all of that into consideration," she says.

Shinehoft points out that an animal will often experience confusion and hardship, not only when an owner dies, but during a divorce or separation.

"Dogs mourn,” she says. “For them not to see one of the owners ever again is sad."

If a court does hear a custody argument involving a pet, the animal will most likely be awarded to the person who purchased it, Shinehoft says.

She says she always asks clients who come to her to have a will drawn up if they have pets.

“They will often say they've made arrangements for someone in their family to take care of their pet once they've passed away,” says Shinehoft.

"Some will stipulate who they'd like to take care of their pet. And some leave small monetary or cash legacies to help cover the cost of its care."

She says it’s important to make your wishes known to family and friends.

"The more clarity you provide to those around you on how you want your pet cared for, the better chance of it being followed,” says Shinehoft. “It's a matter of finding someone who feels the same about your pets as you do.”

She also advises people drawing up separation agreements to include custody arrangements for pets as a private contract between them — something she says lawyers are seeing more often.

While that agreement is still not enforceable in court, Shinehoft says it makes people feel more comfortable that there’s been a provision made for the animals in their care.

"The more you can clarify in advance,” she says, “the less chance there is for disruption and disagreement later."

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