But What About My Dog (or Cat or Snake)?

By: Sarah Delano Pavlik

Historically, pets have been treated like any other personal property.  Unless your pet was a prized pure bred or a service animal, the law placed very little value on him.  Pets had no "rights," and the law did not take into account their "best interests."  But a lot of that has changed.

If your pet was killed by someone (intentionally or unintentionally), your damages under the law were limited to the "fair market value" of the pet and possibly "actual damages" such as vet bills.  For most pets, their fair market value is very little.  However, in Jankoski v. Preiser Animal Hosp., Ltd. in 1987, the Illinois Appellate Court First District noted that:

    The ordinary measure of damages for personal property is the fair market value at the time of the loss. The courts have recognized, however, that there are a number of items of personal property that have no market value. Included in this group are such items as heirlooms, photographs, trophies and pets. ..

    We believe that the law in Illinois is that where the object destroyed has no market value, the measure of damages to be applied is the actual value of the object to the owner. The concept of actual value to the owner may include some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages. It appears clear that damages in such cases, while not merely nominal, are severely circumscribed.

So. although it is now possible to recover more than "fair market value" for a lost pet, the "actual value to the owner" must be proven, and the courts will be stingy in determining that value.

You could also lose your pet in the event of divorce.  As discussed above, animals are personal property under the law.  As property, a pet acquired by a couple during their marriage would usually be "marital" property.  In a divorce, the judge has discretion in dividing the marital property.  But, in 2018, Illinois added a section to the Illinois Marriage and Dissolution of Marriage Act which affects the "division" of pets.  This section provides:

    If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties.  In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.

I have found no cases interpreting the "well-being of the companion animal," however, a divorce lawyer I know in Chicago told me he was able to present an expert at trial who testified that a pet snake had bonded with the wife and the well-being of the snake would be it would be better with the wife.  The court awarded the snake to the wife.

What if you want to provide for your pet after your death?  You may remember that Leona Helmsley left her dog "Trouble" a $12 million trust fund.  A trust is a legal arrangement where one person, the trustee, holds the property for the benefit of another person, the beneficiary.  As a pet is not a "person," historically this could not be done under the law.  Therefore, people would create "honorary trusts."  The beneficiary of the trust would be the human caretaker of the pet.

Illinois solved this problem in 2005 with the Illinois Pet Trust Act.  Under this Act, a trust for a pet is legally valid, however, a court can "reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use."  That happened to Trouble.  The judge in her case reduced her trust from $12 million to $2 million, which was apparently sufficient to maintain her pampered lifestyle until her death.

This article is for informational and educational purposes only and does not constitute legal advice.