Can Miami-Dade County Legally Create the Popular “Pets’ Trust” Initiative?

On Tuesday, June 4, 2013, a group of animal rights advocates spent their day at the Miami-Dade County Commission waiting for the final approval of the “Pets’ Trust,” only to hear that the city had deferred the decision for two weeks. The “Pets’ Trust,” which was overwhelmingly approved by voters in a straw ballot last November, is aimed at protecting unwanted and stray animals from euthanasia. The Trust would be funded by an additional $10 per $100,000 property tax assessment, but commissioners said they were concerned that Miami-Dade voters did not understand that the “Pets’ Trust” would be paid for by a property tax increase.

The estimated $20 million or so raised by the assessment increase would improve the lives of animals by providing free or low-cost spay and neuter programs, as well as veterinary care. Supporters say the “Pets’ Trust” will not only create more animal clinics and decrease shelter intake, but the initiative will also help the county meet the “no-kill” shelter objective it set last year. On June 18, 2013, the Miami-Dade County Commissioners unanimously voted to approve the Pets’ Trust Miami initiative, thereby ensuring its place on the ballot in November, when Miami voters will decide its ultimate fate.

But, exactly what is the “Pets’ Trust?” Under Florida law, a trust, functionally speaking, is an arrangement whereby a trustee manages property as a fiduciary for one or more beneficiaries. Fla. Stat. 736.0103. While the trustee holds legal title to the property-allowing him or her to sell and replace the property with assets the trustee deems more desirable-the beneficiaries hold equitable title, meaning they are entitled to payments from the trust income and occasionally from the trust corpus as well. Fla. Stat. 736.0105. Importantly, a trust must have one or more definite, ascertainable beneficiaries. Fla. Stat. 736.0402. The reason for this criterion? There must be someone to whom the trustee owes a fiduciary duty, i.e., someone who can call the trustee into account.

But, is a trust created for the benefit of a pet animal legally valid? Under the traditional analysis, such a trust is not effective, as it is not for the benefit of a definite, ascertainable beneficiary, which includes people, but not cats or dogs. Yet, individuals frequently wish to establish trusts for the preservation of monuments or graves, in addition to honorary trusts for pet animals. The query thus arises: why not adopt a law that allows for a pet animal trust, so long as its purpose is not capricious or against public policy?

It goes without saying that pet owners often have deep, loving relationships with their pets. In fact, nine out of ten pet owners say they consider their pet to be a member of the family, which sometimes includes sharing a bed at night, and thirty-one percent say they frequently purchase their pet holiday presents. Luckily for Florida residents, trusts can now be established for animals owned by a testator during his or her lifetime, and distributions may be made on behalf of the pet while the animal is living. Fla. Stat. 736.0408. If the trust is created to provide for the care of more than one animal, however, the trust terminates on the death of the last surviving pet. Id. Furthermore, Florida law mandates that the purpose of an animal trust must not be contrary to public policy, and the courts reserve the power to determine whether the value of the trust exceeds the amount required for the intended, beneficial use. Id.

Perhaps the most famous example of a pet animal trust is provided by the will of Leona Helmsley, the New York real estate entrepreneur, known as the “Queen of Mean,” who served an eighteen-month stint in federal prison for tax evasion. In her will, Helmsley left $12 million in trust for the continued care and benefit of her dog “Trouble,” a Maltese poodle that Helmsley nicknamed “Princess.” Specifically, the trust declaration indicated that upon Helmsley’s death, the dog should be buried directly next to her in the Helmsley Mausoleum.

In view of Trouble’s newly inherited wealth, one of the dog’s former handlers threatened to bring suit after Helmsley’s death in 2007, claiming to have suffered permanent nerve damage from Trouble biting her hand. More disturbingly, Trouble began to receive numerous death threats. It was decided, consequently, that Trouble should be moved out of the New York area. A team of security personnel transported Trouble-code named “Bubble” by her protection detail-to Florida by private jet to live with a Helmsley employee in Sarasota.

The honorary trust for Trouble was eventually reduced to $2 million by a New York court after two of Helmsley’s disinherited grandchildren contested Helmsley’s will for lack of testamentary capacity. Identical to Florida animal trust laws, New York allows for the establishment of a legally valid pet animal trust, but authorizes courts to reduce the size of the trust if it “substantially exceeds the amount required for the intended use.” N.Y. Est. Powers & Trusts Law § 7-8.1. Apparently, the court based the $2 million figure on a veterinarian’s analysis of the dog’s life expectancy, as well an estimate of yearly expenses from Trouble’s keeper. Oddly enough, the “Queen of Mean’s” rival in the New York real estate market, Donald Trump, disagreed with the court’s subsequent reduction of Trouble’s trust: “The dog is the only thing that loved her and deserves every single penny of it.”

If you or someone you know needs assistance dealing with the complexities of establishing an honorary trust for a pet animal or other purpose, please do not hesitate to contact the legal team at Chepenik Trushin LLP.